1

INTERVENTION FOR HUMANITARIAN PROTECTION

PURPOSES AND INTERNATIONAL LAW WITH

PARTICULAR CONSIDERATION OF THE CONFLICT IN

SYRIA

Indice

INTRODUCTION .......................................................................................................................... 3

CHAPTER ONE .......................................................................................................................... 11

1 INTERNATIONAL LAW AND THE USE OF FORCE ......................................................... 11

INTRODUCTION .......................................................................................................................... 11

1.1. History of the law on the use of force ....................................................................... 13

1.2. The general principle on the use of force ................................................................. 16

1.3. Clarification of jus ad bellum terms and concepts ................................................... 20

1.4 The Right to Self-Defense in International Law: The Legal Exception

to the Prohibition of the Use of Force ................................................................................. 23

1.5 Requirements for Acting in Self Defense ................................................................ 28

1.6 Attempts to Limit the Scope of the Prohibition of the Use of Force ........................ 32

1.6.1 Use of Force in Protection of Nationals Abroad? .................................................... 34

1.7 The Lawful Uses Of Force Authorized By The UN Security Council ..................... 40

1.8 Humanitarian Intervention : a new possible exception to the use of

force for preventing human right atrocities? ...................................................................... 45

1.9 The Dilemma of Intervention .................................................................................... 49

1.10 Beyond the Right of Humanitarian Intervention : some critical

reflections .............................................................................................................................. 53

1.11 Final Considerations on the Use of Force and the Applications of Art

2(4) 57

CONCLUSION .............................................................................................................................. 64

CHAPTER TWO .......................................................................................................................... 66

2 THE DOCTRINE OF HUMANITARIAN INTERVENTION ........................................... 66

INTRODUCTION .......................................................................................................................... 66

2.1 The Concept of Humanitarian Intervention: the Origins and its

Definition in International Law ........................................................................................... 67

2.2 Overview of International Humanitarian Law ......................................................... 71

2.3 Evolution and Practice of Humanitarianism ........................................................... 75

2.3 The Responsibility to Protect ..................................................................................... 82

2.4 How Does the Principle of R2P Work? .................................................................... 89

2

2.5 The Road to R2P in Practice ..................................................................................... 99

2.6 The Rwanda Genocide, 1994 :Challenges and Implications of

Responsibility to Protect ..................................................................................................... 101

2.7 The Responsibility to Protect in the Libyan Intervention: Ultimate

Success or International Failure? ..................................................................................... 108

2.8 To What Extent Was the NATO Intervention in Libya a Humanitarian

Intervention? ....................................................................................................................... 113

2.9 The Difficult Choice to Intervene: Final Reflections on the Dilemma

Concerning the Management and Efficiency of Humanitarian Aid ................................ 121

CONCLUSION ............................................................................................................................ 130

CHAPTER THREE ................................................................................................................... 132

3 THE SYRIAN CRISIS AND ITS EVOLUTION ................................................................... 132

INTRODUCTION ........................................................................................................................ 132

3.1 Syria’s profile ........................................................................................................... 133

3.2 Syria’s civil war explained from the beginning ...................................................... 138

3.3 The Role Played by the UN in Syria: the Actions Implemented and

their Effectiveness ............................................................................................................... 143

3.4 Syria Today .............................................................................................................. 151

CONCLUSION ............................................................................................................................ 155

CHAPTER 4 ............................................................................................................................... 156

4 THE DOCTRINE OF HUMANITARIAN INTERVENTION AND

RESPONSIBILITY TO PROTECT APPLIED TO THE SYRIAN CASE .............................. 156

INTRODUCTION ........................................................................................................................ 156

4.1 Application of the R2P Principle in International Responses to the

Syrian Crisis ........................................................................................................................ 157

4.2. A Conflict Without Truce : the Fate of Syria in the Indecision of the

United Nations Members .................................................................................................... 164

4.3 The Type of Syrian Conflict and the Implications of its Legal

Classification on the Application of the Principle of Humanitarian Access ................... 172

4.4 Historical Antecedents: Similarities and Differences with the Syrian

Case 176

4.5 An endless succession of interventions with conflicting aims ............................... 179

4.6 Application of "just war" requirements to the Syrian case ................................... 183

4.7 Operations in Syria and the problems of qualification of armed

conflicts ............................................................................................................................... 190

4.8 International Justice: Options for Syria ................................................................. 197

4.9 The Final Balance ................................................................................................... 203

CONCLUSION ............................................................................................................................ 207

CONCLUSION........................................................................................................................... 208

BIBLIOGRAPHY....................................................................................................................... 211

3

INTRODUCTION

Important historical events such as large-scale cross-border

migration, as well as the bloody conflicts in Syria, Yemen,

Libya, and Palestine draw the attention of the international

community to the protection of civilians. This study focuses

mainly on the analysis of the Syrian case. The first part of the

thesis will focus on the legal concepts that underpin

humanitarian law and the concept of the "responsibility to

protect". The second chapter until the end of the work the

analysis links both current and past events in which

humanitarian intervention was considered. The theory of the

responsibility to protect has been invoked to shape the

responses to the crisis in Kenya and Libya in 2011 and, to a

lesser extent, to the crisis in Syria (2012) and the humanitarian

4

crisis in Myanmar following the devastation caused by Cyclone

Nargis.

In recent years, we are facing the constant blows inflicted on

the rules governing relations between states and, therefore, the

threat of undermining an already delicate and weak capacity of

general international law to limit violence and prevent it from

slipping into abyss of armed conflicts. The United Nations

Charter refers exceptions to the use of force as the authorization

of the Security Council under Chapter VII, concerning action

with respect to the threat to peace, the violation of peace and the

acts of aggression, or the rule concerning the individual or

collective legitimate defense, enshrined in Article 51 of the

Charter. It is clear that there is no authorization for the use of

the armed coercive action by the Security Council, beyond the

exceptions mentioned. However, despite this prohibition in the

current United Nations system, the practice of States in some

areas such as Kosovo and Syria and the growing lack of

reaction of most States, which characterize the international

community, leads to the belief that many States have begun to

tacitly accept a divergent rule (that of intervening without

5

authorization from the Security Council). A divergence that was

seized by the US representative during the heated debate in the

Security Council, where the US intervention against Syria was

addressed, which had stated that “ When the United Nations

fails in adopting collective decisions, there are times when

states are forced to act on their own", that is to say, without the

endorsement or consent of the United Nations.

The general view of the Responsibility to Protect (R2P) as an

emerging standard of customary international law is therefore

challenged in the light of the conflict and will be analysed in the

course of the thesis evaluating the reasons why it was

considered not applicable by mass atrocities perpetrated in

Syria since 2011. This thesis tries to outline a more realistic

scenario on latest developments in the R2P doctrine in the face

of the recent Syrian crisis, discussing whether it should be seen

as a "missed opportunity" to demonstrate its applicability. For

this purpose the thesis will be divided into four main sections:

the first provides a brief overview of the development of the

general principle of the use of force with its exceptions and

authorized uses, the second aimed at laying the legal

6

foundations for a reflection on the application of humanitarian

law and humanitarian intervention, the third illustrating the

Syrian situation, the fourth dedicated to a conclusive analysis

and comparison with other historical events past and present,

will be linked by considerations of a legal nature to reflect on

the criticalities found in each theatre of war offering a critical

analysis of the reasons that lead the international community to

remain inactive in not applying that doctrine . In particular, the

controversial definition of the concept of intervention, which is

the basis for any conflict in the qualification of the

responsibility to protect, will be of fundamental importance.

The concept of intervention is often related to the concept of

"interference". Indeed, by summarising and proposing a new

vision of humanitarian intervention, the concept of intervention

can also define political action. The problem is that the

intervention is identified as a military action against a state. On

the contrary, the concept of interference is broader and include

not only a military action, whether direct or indirect, but also a

intervention which may involve cultural, economic or other

forms of interference values, such as the dissemination of

cultural models, which are can provoke reactions in the

7

population of a State which could destabilize the government or

even induce riots or revolutions by the population as in the case

of the revolt in Syria, which has now become a conflict that

involves several actors and therefore has an international

dimension. The conceptual contrasts we are going to talk about

will be used in the course of this thesis as reference point to

understand that currently either we opt for a more precise

qualification of the responsibility to protect, or humanitarian

intervention will always be characterized by contrasts that will

make respect for human rights subject to evaluations often

vitiated by opposing interests. From this point of view, it is the

innocent population that will pay the price. The contribution of

this work is certainly to be found in the observation that most of

the interventions States or regional organisations in defence of a

population are not often carried out as a condemnation, to

violations of rights human but inspired by political and/or

strategic motivations for the control of energy resources. This

type of reflection will be present during the work and supported

by studies and empirical evidence. The case of Syria is

emblematic and allows us to qualify such statements not as

mere places, but as facts supported by historical events.

8

Humanitarian intervention has been considered by many states,

especially by those who suffer it, as an intrusion into the or

undue limitation of their sovereignty. The overall purpose of

the proposed thesis will be oriented to describe the positioning

of the concept of responsibility to protect within internationalist

studies: the evolution of the law in the field of human rights has

required a change in international law with regard to

humanitarian intervention. In the post second World War

atmosphere, the growing global awareness of serious and

repeated human rights violations has caught the attention of the

international community like never before, and the question of

intervention for human protection has turned into a serious

question of contention. As a result, humanitarian intervention

has undergone a transformation. The thesis begins by

examining the concept of prohibition of the use of force in

international law and the exception to this prohibition, in the

name of humanitarian intervention. A central role in the thesis

is occupied by the evaluation of the concept of responsibility to

protect as a justification for humanitarian intervention with the

aim of providing for the formation of a complete general

framework of this doctrine within the international panorama.

9

In order to justify certain analyses, the method of study used

will be that of continuous theoretical and empirical comparison

of different historical events , such as the Rwandan genocide of

1994 or Libyan resolution, concerning the concrete application

of the responsibility to protect. From an empirical point of

view, the verification of the application of the principles of

humanitarian law will be based on Syrian events. The analysis

of the Syrian case and the failure of states and no-state actors to

adhere to the law in this particular case, will be aimed not only

at conducting an historical or legal analysis; the purpose of the

work in the last part of the thesis is to emphasize that the

responsibility to protect could be at the heart of development

and international relations. The final chapter argues that the

Syrian case represents a failure to apply the concept of

responsibility to protect: that catastrophic failure of the

international community is concretized in the absence of

effective actions for the protection of the population of Syria,

that has allowed the parties in conflict, above all the Syrian

government to carry out war crimes and crimes against

humanity in complete impunity, with a budget which today is

dramatic and catastrophic. UN and NGO estimates range

10

between 350,000 and half a million deaths. In the country,

which had about 23 million inhabitants before the conflict,

about half of the population was forced to leave their homes due

to fighting. The French NGO Handicap International reported

one million injured in 2017.

The purpose of my dissertation is to focus on how the doctrine

on the responsibility to protect is relevant to understanding and

analyzing the behavior of states in their approach to

international relations.

The Syrian conflict in particular is a very significant case study

for this type of approach: many different actors have faced the

crisis trying to find a solution, but, and this is what is relevant,

there has been no real cooperation and effective. In the complex

system of international relations, each actor is guided primarily

by the personal interests of the states, thus opening up a

scenario that shows how each actor is more committed to

pursuing his own benefits, rather than worrying about issues

such as cooperation or the actual and ready intervention in

unstable and precarious situations. Thus, in a scenario

dominated by the change and the change in the established

balances, the Syrian dynamics remained on the sidelines, closed

by the divisions of the UN member states and the tensions that

influenced relations with them States.

11

In particular, it will be a focus on the analysis of how and when

the doctrine based on respect for the rules and principles of

international law in matters of sovereignty, peace and security,

human rights and armed conflict has worked and when it has

failed.

CHAPTER ONE

1 International Law and the Use of Force

Introduction

In order to be able to examine the concept of R2P and how it

applies to Syria, this chapter will carry out a first analysis

12

starting from a broader legal and political context such as that

of international norms on the use of force, which constitutes one

of the cornerstones of the international legal system. Declared

in the art. 2 (4) of the Charter of the United Nations , this

prohibition is also universally accepted as a norm of customary

international law. The purpose of the chapter is to look at the

prohibited and permissible use of force in International

Relations. As the prohibition of the use of force is at the core of

international legal efforts to prevent war, today it is part of a

more complex international legal framework. The prohibition is

secured by means of collective measures and the obligation to

resort to peaceful means for the settlement of disputes. The

issue concerning the use of force will be treated starting since

its historical origins, dating back to the notion of “just and

unjust war”. After various attempts with negative outcomes ,

the prohibition on the use of force will be subsequently

consecrated in the Charter of the UN and become part of

customary international law: but this ban is not absolute . In

fact, there are two exceptions by virtue of which ,the use of

force may be justified . These exceptions are : the use of force

authorised by the Security Council under Chapter VII in case of

a “threat to peace, breach of peace and act of aggression” and

the right to use force under art. 51 in self-defense. Another

important question that will be analyzed during the chapter,

concern the qualification of the concept of humanitarian

intervention in the light of adding another possible exception to

the general prohibition on the use of force. Can this assumption

be supported by state practice?

13

1.1. History of the law on the use of force

For centuries, states have resorted to the use of force in their

international relations, to achieve particular and strategic aims.

The use of force has proved, in its tragic consequences, as a

method for resolving disputes between states. The states

,initially, enjoyed the right to wage war without any

internationally agreed regulatory framework. However, over

time, things have changed with the emergence of concepts of

"just and unjust war". The distinction between the two concepts

, can be traced back to ancient Rome and the Fetials (fetishes), a

group of priests whose main task was to maintain internal and

external relations in a peace regime and which gave rise to fetal

law ( ius fetiale) - religious law that regulates the process of

creation, interpretation and application of treaties, regulations

and acts on the declaration of war. However, the concept of

"just war" has changed and evolved over the centuries (Von

Elbe, 1939 ). There was a general conviction that deliberations

on war should first pass through these priests, who would then

proceed to provide a judgment of the gods on justice with

regard to the proposed course of action. If it was decided that a

serious peace violation had occurred, as to provide a valid

justification for a just war, the relatives would first turn to the

guilty city for compensation. If, after a certain period of time,

no adequate compensation was given, then the war could begin.

The declarations of war were expressed in a lawsuit, in which

the verdict transmitted by the fetials was intended to decide on

the question whether the war could be conducted properly.

Regardless of whether or not a war should be conducted (to

enforce a verdict), then it would be the case of a new decision,

14

which must be taken by the king, the senate, or even (in

subsequent periods) by the entire population.1 The doctrine of

"just war" was further influenced by the doctrine of Christian

theologians such as Saint Augustine and Saint Thomas Aquinas.

The latter, famous for his Summa Theologica, stated that the

three criteria for a just war were three: first of all it should be

promoted by a sovereign authority (prohibition of conducting a

private war), secondly it must have a just cause (punishment of

criminals), thirdly a just cause must always be accompanied by

the right intention. However, along with the emergence of

independent states in Europe, the doctrine has begun to evolve

and change with the times. In light of the growing number of

sovereign states and the hunger for power, wars have begun to

be seen and defined as a legal affair rather than a matter of

moral judgment. It was no longer possible to judge whether the

reason that each state used to justify the use of force was right

or not. This approach was supported by the current of

positivism, which focused strongly on the idea of sovereignty

and on the Peace of Westphalia of 1648, which established a

European system of balance of powers. This system survived in

Europe until the beginning of the twentieth century, effectively

coming to an end with the outbreak of the First World War.2

After the First World War, great efforts were made to

reconstruct international relations between states through the

establishment and functioning of an international institution

whose main role was to ensure that such acts of aggression were

not repeated in the future. The League of Nations (LON) was

1 Reichberg et al., 2006, pp. 47–8.

2 Alvarez, J. E. (2008) ‘The schizophrenias of R2P’ in Alston, P. and MacDonald, E. (eds)

Human Rights, Intervention, and the Use of Force, Oxford, Oxford University Press.

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created in 1919 precisely for the purpose of achieving this goal.

As part of the 1919 League of Nations Pact, member states had

to resolve disputes between states through arbitration or seek

other forms of judicial agreement with the League Council.

However, the Pact did not actually eliminate the right of states

to resort to war, although it subjected this provision to various

limitations. In 1928 a further attempt was made to regulate the

use of force through the signing of the General Treaty for the

renunciation of war as an instrument of national politics, more

commonly referred to as the Kellogg-Briand Pact. The parties

to this treaty stated that "they condemn the use of war" and

agreed to "renounce it as an instrument of national politics in

their mutual relations" (Article 1). The outbreak of the Second

World War in 1939 once again marked the end of the attempt to

resort to peaceful international relations. The tragic events, but

above all the outcomes of this international conflict, led to the

adoption of the United Nations Charter (United Nations

Charter) in 1945, which led to the development of a framework

for regulating the use of force by the community members of

the international society. That system remains in force. The

current legal framework regulating the use of force in

international law is enshrined in the UN Charter. The

maintenance of international peace and security is the primary

purpose of the UN (Article 1(1) UN Charter). This includes:

“prevention and removal of threats to the peace, [...] the

suppression of acts of aggression or other breaches of the

peace, [...] and in conformity with the principles of justice and

international law, adjustment or settlement of international

disputes or situations which might lead to a breach of the

peace”

16

The UN Charter further provides that:

“All Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or

political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations. 3 “

It is important to underline that the prohibition of use of force is

not absolute. However, as the wording of Article 2, paragraph 4

suggests, the use of force is admissible in circumstances that

relate to the purposes of the UN . Chapter VII of the Charter of

the United Nations ("Action for the respect of peace, violations

of peace and acts of aggression"), outlines the exact moment in

which the State can resort to the use of military force against

other states. The force can be used against another state when:

this act is expressly authorized by the United Nations Security

Council or when a state acts in self-defense.

1.2. The general principle on the use of force

In November 2010, the Executive Committee of the

International Law Association approved a proposal for the

establishment of a Committee on the use of force, with the task

of producing a report on aggression and the use of force. In

2016, the Executive Committee extended the Committee for

another two years. The Committee met at the ILA Conferences

3(Article 2(4) UN Charter)

17

in Sofia, Washington and Johannesburg in 2012, 2014 and

2016, as well as at the University of Essex, United Kingdom

(2012), the University of Cambridge, United Kingdom (2013)

and the Institute Max Planck from Heidelberg, Germany

(2017).4 It was completed in April 2018. The Committee's

mandate focuses mainly on the international law on the use of

force (jus ad bellum); it does not deal directly with international

humanitarian law or international human rights law, even

though both these areas of law are equally involved in every

circumstance in which armed force is being used. The difficulty

of the treatment lies not in the definition of the rules of

international law on the use of force ,which is in any are case

relatively easy, although may be difficult to apply these rules in

practice.5 The main rules are contained in the Charter of the

4 Professor James A. Green, Professor Christian Henderson, Professor Claus Kreß,

Professor Sean Murphy, Professor Tom Ruys and Ms Elizabeth Wilmshurst, individually or

on at least one occasion jointly, prepared drafts for particular sections. In addition, the

Chair and Rapporteur wish to acknowledge the excellent editorial assistance of Alfredo

Crosato Neumann in the preparation of the final draft of the report, and the valuable

assistance at committee meetings of Rachel Borrell, Nathan Derejko, and Erin Pobjie.

5 The political organs of the United Nations, in particular the General Assembly, have

contributed to the law through consensus resolutions: Declaration on Principles of

International Law concerning Friendly Relations and Co-operation among States in

accordance with the Charter of the United Nations (Friendly Relations Declaration) (UNGA res. 2625(XXV)); Definition of Aggression (UNGA res. 3314(XXIX)); Declaration on the

Non-use of Force (UNGA res. 42/22). So too has the International Court of Justice in a series of judgments and advisory opinions: Corfu Channel Case, Judgment of April 9th,

1949, I.C.J. Reports 1949, p. 4; Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986,

p. 14; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports

1996, p. 226; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161; Legal Consequences of the Construction of a Wall

in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136;

Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda),

Judgment, I.C.J. Reports 2005, p. 168. See also C. Gray, “The International Court of

Justice and the Use of Force”, in C. J. Tams and J. Sloan (eds.), The Development of International Law by the International Court of Justice (Oxford: Oxford University Press,

2013), at pp. 237-261; C. Kreß, “The International Court of Justice and the ‘Principle of

18

United Nations and in customary international law. The Charter

contains, among the general principles of the United Nations, a

prohibition of threat and use of force (Article 2, paragraph (4),

which is also obviously a fundamental part of customary

international law6 . However, the Charter refers to two

exceptions to the general prohibition. Firstly, forced measures

may be adopted or authorized by the Security Council, which

acts in accordance with Chapter VII of the Charter. Secondly,

force can be used in exercising the right of individual or

collective self-defense, recognized in Article 51 of the Charter.

Another exception that can be added to the other two, but which

remains doubtful and controversial, is the use of force to ward

off an overwhelming humanitarian catastrophe (sometimes

referred to as "humanitarian intervention"). However, this is not

officially mentioned in the Charter and should be sought in the

subsequent practice of the Parts of the Charter of the United

Nations and in customary international law. Furthermore, the

force used upon request or with the consent given by the

government of the territorial state, which is not a real

exception,is controversial too. The use of force in retaliation

(punishment, revenge or reprisals) is illegal7 .Together with the

Non-Use of Force’”, in M. Weller (ed.), The Oxford Handbook of the Use of Force in

International Law (Oxford: Oxford University Press, 2015), at pp. 561-604.

6 Nicaragua v. United States of America, supra n. 2, at paras. 188-190

7 Friendly Relations Declaration, supra n. 2 (“States have a duty to refrain from acts of

reprisal involving the use of force”). See also S. Darcy, “Retaliation and Reprisal”, in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford:

Oxford University Press, 2015), at pp. 879-896.

19

primary obligation of peaceful settlement of disputes8 , the

prohibition of the use of force is at the heart of the collective

security system of the United Nations Charter. In the era before

the entrance of the Charter, the Alliance of the League adopted

a formulation that failed to achieve its goal, as it focused on the

prohibition and regulation of "recourse to war" thus giving rise

to loopholes that allowed permitted uses of strength not

qualified as war. This was followed by the Kellogg-Briand Pact

of 1928, in which the parties condemned the use of war for the

solution of international disputes and abandoned it as a tool of

national politics in their mutual relations9 .

The United Nations Charter, which reflects a greater desire to

avoid the use of force, has broadened the ban by forcing states

not to use "force", in contrast to the more restricted term "war".

Article 2, paragraph 4, has been described as the cornerstone of

the Charter and it is a fundamental tool for achieving the so

desired global peaceful order. It contains an explicit prohibition,

stating that:

"All members will refrain from their international relations

from the threat or use of force against the territorial integrity or

political independence of any state, or in any other way

incompatible with the purposes of the United Nations."

According to that, two fundamental points must be resolved:

8 UN Charter, Articles 2(3) and 33.

9 R. Lesaffer, “Kellogg-Briand Pact (1928)”, in R. Wolfrum (ed.), Max Planck

Encyclopaedia of Public International Law, Vol. VI (Oxford: Oxford University Press,

2012), at pp. 579-584

20

first of all the nature of the forbidden force; and secondly if the

purpose for which force is used is a determining factor in its

prohibition.10

1.3. Clarification of jus ad bellum terms and concepts

The nature of the principle of the prohibition of the use of force,

was the subject of the debate during the drafting of the United

Nations Charter. The coercive measures in themselves are not

equated with the type of force envisaged by Article 2, paragraph

4, but the possibility of violation of other prohibitions remains,

such as the principle of non-intervention11 . Article 2 (4) it is

mainly be considered with reference to the use of "armed" or

"physical" force12 . And it is precisely this interpretation that

10 C. H. M. Waldock, “The Regulation of the Use of Force by Individual States in

International Law”, in 81 Recueil des Cours 451 (1952); D. W. Bowett, Self-Defence in

International Law (Manchester: Manchester University Press, 1958); I. Brownlie,

International Law and the Use of Force by States (Oxford: Oxford University Press, 1963);

T. M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks

(Cambridge: Cambridge University Press, 2002)

11 Nicaragua v. United States of America, supra n. 2, at para. 228 (financing the contras)

12 L. M. Goodrich and E. Hambro, Charter of the United Nations: Commentary and Documents (Boston: World Peace Foundation, 1946), at p. 70; N. Schrijver, “Article 2,

paragraphe 4”, in J. Cot et al. (eds.), La Charte des Nations Unies (Paris: Economica, 3rd

ed., 2005), at pp. 437-466

21

has been confirmed in the list of examples that are contained in

the Declaration of Friendly Relations13 .

In fact, the latter also states that the prohibition of force also

extends to the use of indirect force, intended for example as that

aimed at arming the rebel groups14.

The reference in Article 2, paragraph 4, to the use of force

"against the territorial integrity or political independence of any

state" has been invoked to justify uses of force in circumstances

that could be claimed to have other objectives (to example

humanitarian intervention). If a use of force is not against any

of these qualifications, then such use of force does not fall

within the scope of Article 2, paragraph 4. However it has been

argued that this interpretation, is unsustainable for at least two

reasons .

First of all, the examination of the traveuax prèparatoires of the

Charter shows that the reference to territorial integrity or

political independence was not intended to restrict the

prohibition, rather, it was a specification that intended to

recognize the equal sovereignty of weaker or postcolonial

states15. Secondly, Article 2, paragraph 4, goes on to affirm "or

in any other way incompatible with the purposes of the United

13 Friendly Relations Declaration

14 Ibid. See also Nicaragua v. United States of America, supra n. 2, at para. 228.

15 Brownlie notes that it was “not intended to be restrictive, but, on the contrary, to give

more specific guarantees to small states and that it cannot be interpreted as having a

qualifying effect”. See Brownlie, supra n. 8, at p. 267.

22

Nations". In the San Francisco conference it was then specified

that

"the intention of the authors of the original text was to state in

the broadest terms an absolute all-inclusive prohibition, the

phrase "or in any other way" was designed to ensure that there

are no loopholes "16.

A further controversial issue is whether there is a gravity

threshold below which a use of force does not fall under the

prohibition of Article 2, paragraph 4. While it has been stated

that there is a de minimis threshold17 , there is no sufficient

evidence in favor of this or against this. Cases where states have

not invoked a violation of Article 2, paragraph 4, can more

simply indicate for example,a political decision not to invoke a

violation of Article 2, paragraph 4. Of course, a law

enforcement situation may turn into one that involves a

prohibited use of force18 .

It is possible that the differentiation in these cases is based on

the level of force or the nature of the force.

The relatively and intentionally wide range referred to in Article

2, paragraph 4 reflects the general objective of the United

16 6 U.N.C. I. O. Docs. 334 (1945), at pp. 334-335. See also the rejection of the UK

argument in Corfu Channel, supra n. 2. 18 Nicaragua v. United States of America, supra n.

2, at paras. 191, 195; Eritrea-Ethiopia Claims Commission – Partial Award, Jus Ad Bellum

– Ethiopia’s Claims 1-8, 19 December 2005, XXVI RIAA 457, at para. 11

17 Nicaragua v. United States of America, supra n. 2, at paras. 191, 195; Eritrea-Ethiopia

Claims Commission – Partial Award, Jus Ad Bellum – Ethiopia’s Claims 1-8, 19 December

2005, XXVI RIAA 457, at para. 11.

18 T. Ruys, Armed Attack and Article 51 of the UN Charter (Cambridge: Cambridge

University Press, 2010), at pp. 12-13.

23

Nations Charter to reduce the use of force by States to the point

where it can only take place with the authorization of the UN

Security Council or self-defense against an armed attack.

1.4 The Right to Self-Defense in International Law: The Legal

Exception to the Prohibition of the Use of Force

The right to self-defense is another exception to the general

prohibition of the threat or the use of force, as can be seen from

the main aims of the United Nations. The center of the question

is not whether the right to self-defense exists, but when exactly

the states have the right to make use of this principle which

represents an important exception to the prohibition of the use

of force. Can be applied even before or only after being the

victim of an armed attack? What constitutes an armed attack?

The right to self-defense allows states a legitimate use of force

to protect their sovereignty, political independence and security

without incurring in international responsibility. However, in

order to exercise this right it is necessary that there has been an

armed attack. In addition, states are required to provide proof

that the force has been used necessarily, proportionately and

immediately, in addition to informing the UN Security Council

19. The right to self-defense refers to the concept of defensive

use of force that arises with the law of nations. The defensive

use of force was a sovereign right that belonged to every state

and therefore the origin of self-defense was the sovereignty of

19 rebaz khdir, The Right to Self-Defence in International Law as a Justification for

Crossing Borders: The Turkey-PKK Case within the Borders of Iraq, 4(4) russian Law

Journal 62–80 (2016).

24

the state 20. Other scholars argued instead that the right to self-

defense originates from the concept of "just war" which it was

already present in ancient Greece and Rome. A just war would

have been against a state, when the state violated its obligations

and refused to repair the damage afterwards 21.But the modern

origin of the concept of self-defense goes back to the Caroline

incident between the British and US governments in 1837 22. In

the first half of the 19th century, while Canada was under

British domination, there was a rebellion against the system of

British colonialism23.On the night of December 29, 1837, the

Carolina, an American ship that would bring assistance to the

rebels, was moored on the American shore of the Niagara

River. British troops crossed the river and attacked the ship,

killing some Americans and setting fire to the ship. From this

moment, tensions arose in relations between London and

Washington. On one hand, the United States has declared that

British troops have crossed their borders and violated the

principle of sovereignty, but the British on the other hand have

20 Murray Colin Alder, The Origin in International Law of the Inherent Right of Self-

Defence and Anticipatory Self-Defence, 2 the western Australian Jurist 115 (2011).

21 kinga tibori szabo, Anticipatory Action in Self-Defence: Essence and Limits under

International Law 32–33 (hague: t.M.C. Asser Press, 2011)

22 Anthony Clark Arend, International Law and the preemptive Use of Military Force,

26(2) the washington Quarterly 90 (2003

23 British-American Diplomacy: The Caroline Case, yale Law school Lillian goldman Law

Library (May 2, 2016), available at: http://avalon.law.yale.edu/19th_century/br-

1842d.asp#web1.

25

justified their attack by virtue of the principle of self-defense.

Although Great Britain apologized for the act after numerous

and intense diplomatic exchanges, the Caroline case has

decreed the modern practice of the right to self-defense in

international law. During this diplomatic correspondence

between the parties was outlined a scheme with the key

elements for a legitimate use of self defense. The US Secretary

of State, Daniel Webster, stressed that for legal self-defense in

international law, the British government must prove:

“It will be for [Her Majesty’s Government] to show, also, that

the local authorities of Canada, - even supposing the necessity

of the moment authorized them to enter the territories of the

United States at all-did nothing unrosanable or excessive.

Undoubtedly it is just, that while it is admitted that exceptions

growing out of the great law of self- defence do exist, those

exceptions should be confined to cases in which the need for

self-defense, instantaneous, overwhelming, without choice of

means and no moment of deliberation and assuming that such a

need existed at that time:the act justified by the need for self-

defense must be limited by that necessity and kept clearly within

it.”24

During the negotiations for the adoption of the United Nations

(UN) Charter25 at the San Francisco Conference of 1945, the

right to self-defense was expressly enshrined in Article 51 and

24 Webster, D. and Fox, H. S. (1857) ‘Correspondence between Great Britain and the

United States, respecting the Arrest and Imprisonment of Mr. McLeod, for the Destruction

of the steamboat Caroline – March, April 1841’ British and Foreign State Papers 1840–

1841, vol. 29, pp. 1126–1142 [Online].

25 Charter of the united Nations (adopted June 26, 1945 and entered into force october 24,

1945).

26

became part of international conventional law. The

International Court of Justice itself (ICJ) made explicit the right

and scope of its applicability, in a number of cases, such as

military and paramilitary activities in and against Nicaragua

(1986) 26, the legality of the threat or the use of nuclear

weapons (1996) 27and the legal consequences of the

construction of a wall in the occupied Palestinian territory

(2004) 28.Self-defense is the second exception to the prohibition

of the use of force in Article 2, paragraph 4, of the Charter of

the United Nations. The Charter seeks a balance between the

recognition of the right of states to defend themselves, at the

same time aiming to limit the use of force through article 2 (4).

It is therefore imperative that the right to self-defense be

interpreted so as to allow states to protect themselves from

armed attacks, without becoming a pretext for unjustified uses

of force. Therefore, Article 51 of the Charter was formulated as

follows:

“Nothing in the present Charter shall impair the inherent right

of individual or collective self-defence if an armed attack

occurs against a Member of the United Nations, until the

Security Council has taken measures necessary to maintain

26 case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua

v. united states of America), ICJ Judgment, June 27, 1986.

27 Legality of the threat or use of Nuclear weapons, Advisory opinion, July 8, 1996, ICJ

reports (1996

28 the Legal Consequences of the Construction of a wall in the occupied Palestinian

territory, Advisory opinion, July 9, 2004, ICJ reports (2004).

27

international peace and security. Measures taken by Members

in the exercise of this right of self-defence shall be immediately

reported to the Security Council and shall not in any way affect

the authority and responsibility of the Security Council under

the present Charter to take at any time such action as it deems

necessary in order to maintain or restore international peace

and security.”

In the interpretation of this article, scholars have divided

themselves in two different currents of thought: a group of

scholars interprets it restrictively and limits the scope of the

applicability of the right to use force against an effective

military attack. In their view, a state can only exercise the right

to self-defense in response to an ongoing armed attack. The

attack must therefore be a real attack and the victim must be a

real victim, otherwise the use of force would be illegitimate 29.

The second group believes instead that the article can be

interpreted more widely. According to this current, states can

exercise the right not only to fight an effective military attack,

but also in response to an imminent armed threat to their

sovereignty, political independence and security. This thought

start from the assumption that the right to self-defense was a

preexisting custom practice before being included in the UN

Charter. Necessity, proportionality and immediacy are also

conditions that a state should encounter before and during the

use of force, otherwise such use would become illegal.

Necessity means that the state must not have other effective and

29 shah 2007, 97.

28

available means except resorting to the use of force 30.

Proportionality means that force must not exceed the scope of

the attack and be limited to eliminating the threat. Immediacy

means that any response must be instantaneous. However, this

represents the less rigid condition because a response to an

armed attack can be delayed if it is necessary to collect

evidence or any other logical conditions.

1.5 Requirements for Acting in Self Defense

As we have seen in the course of this paragraph, article 51

recognizes the right of states to self-defense, on the condition,

however, that the states that exercise this right satisfy two

requirements: the first requirement is that:

“[m] easures taken by Members in the exercise of this right of

self-defence shall be immediately reported to the security

Council and shall not in any way affect the authority and

responsibility of the security Council under the present Charter

to take at any time such action as it deems necessary in order to

maintain or restore international peace and security.”

30 Christopher greenwood, Self-Defence, Max Planck Encyclopedia of Public International

Law (2011) (May 3, 2016), available at:

http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-

e401?prd=EPIL.

29

The failure of the member states to satisfy this first requirement

makes the request for self-defense less acceptable and is

considered a violation of the UN Charter:however, it does not

make the use of force completely unlawful. The second

condition is that states can take actions only “[u]ntil the

security Council has taken measures necessary to maintain

international peace and security”. These requirements are

binding pursuant to chapter vII of the UN Charter and hopefully

attempt to reach a resolution of the dispute by peaceful means.

The language version of the Charter provides that the right to

self-defense is available "if an armed attack occurs". Another

important aspect concerns the time span that is reflected in the

use of the word "happens", which seems to exclude the

possibility of acting in self-defense before an armed attack

occurred .The debate on the legitimacy of anticipatory self-

defense was one of the most controversial issues surrounding

the right to self-defense under international law

An interpretation of Article 51 of the Charter excluded any

possibility of preventive action, and provides for recourse to

self-defense only if an armed attack actually took place.

Secondly, this self-defense is admissible in the face of

imminent attacks. The broad interpretation of the latter position,

sometimes called preventive self-defense and which allowed for

self-defense in relation to more temporally remote threats, was

adopted by the George W. Bush administration following 11

September, with particular reference to "States rogue ",

terrorists and weapons of mass destruction 31. However, this

31 The National Security Strategy of the United States of America (The White House, 2002),

at p. 15. See also the discussion over widening the scope of anticipatory self-defence in J.

Bybee, “Authority of the President Under Domestic and International Law to Use Military

Force Against Iraq – Memorandum Opinion for the Counsel to the President”, in 26

Opinions of the Office of Legal Counsel (2002), at pp. 194-195; A. Arend, “International

30

interpretation has received very limited support and has been

replaced by further clarification of American policy, then

reaffirming the requirement of an imminent attack 32. There is

still a debate among the supporters of the two original positions;

there would seem to be increased support for the opinion that

there is a right to self-defense in relation to manifestly

imminent attacks 33. This position has received further

confirmation in the reports of the UN Secretary-General,

although there does not appear to be a clear majority for both

sides of the debate.

According to Bush administration :

For centuries, international law recognized that nations need

not suffer an attack before they can lawfully take action to

defend themselves against forces that present an imminent

danger of at- tack. Legal scholars and international jurists

often conditioned the legitimacy of preemption on the existence

of an imminent threat-most often a visible mobilization of

armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the

capabilities and objectives of today's adversaries. Rogue states

Law and the Preemptive Use of Military Force”, in 26 Washington Quarterly 89 (2003), at

pp. 97-98.

32 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military

Force and Related National Security Operations (The White House: 2016), at p. 9

33 The Chatham House Principles of International Law on the Use of Force by States in

Self-Defence”, in 55 International & Comparative Law Quarterly 963 (2006), at p. 965; C.

Greenwood, V. Lowe, P. Sands and M. Wood, all in E. Wilmshurst, Principles of

International Law on the Use of Force by States in Self-Defence – working paper (The

Royal Institute of International Affairs, 2005)

31

and terrorists do not seek to attack us using conventional

means. They know such attacks would fail. Instead, they rely on

acts of terror and, potentially, the use of weapons of mass

destruction-weapons that can be easily concealed, delivered

covertly, and used without warning. The United States has long

maintained the option ofpreemptive actions to counter a

sufficient threat to our national security. The greater the threat,

the greater is the risk of inaction-and the more compelling the

case for taking anticipatory action to defend ourselves, even if

uncertainty remains as to the time and place of the enemy's

attack. To forestall or prevent such hostile acts by our

adversaries, the United States will, if necessary, act

preemptively.34

Although the question about the Bush doctrine remains

uncertain, there may be reason to accept that in the face of a

specific ,imminent armed attack based on indicators that can be

objectively verified, States can engage in measures to defend

themselves in order to prevent the attack. S.uch measure

obviously should comply with all the requirements of armed

attack, necessity and proportionality, which will further limit

34 THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF

AMERICA 15 (2002), available at http://www.whitehouse.gov/nsc/nss.pdf [hereinafter

NATIONAL SECURITY STRATEGY] (asserting that international law has recognized

need for nations to defend themselves against states that present imminent danger and that

United States maintains option of preemptive actions against serious dangers to national

security); see also President George W. Bush, Commencement Address at the United States

Military Academy in West Point, New York, 38 WEEKLY COMP. PREs.Doc. 944, 946

(June 10, 2002) ("[Olur security will require all Americans to be forward-looking and

resolute, to be ready for preemptive action when necessary

todefendourlibertyandtodefendourlives.)

32

the preventive use of force, and the use of effective measures by

the Security Council must be preferred. If a state falsely

describes its forced measures as preventive self-defense when

in fact there was no imminent armed attack to justify such

action, its use of force will be examined in the light of the

prohibitions of the use of force and aggression.

1.6 Attempts to Limit the Scope of the Prohibition of the Use of

Force

Since the entry into force of the UN Charter, several attempts

have been made to “drive a horse or a couch” through the

provisions of Article 2, paragraph 4, and 51 of the UN Charter

discussed above. Some writers refer to the concept of just war

conceived in contemporary international law while other writers

maintain that the United Nations Charter is a convention with a

constitutional nature and political considerations should be

taken into account in interpreting Article 2, paragraph 4

(Corten, 2012). These considerations served to justify the

"preventive war","Preventive self-defense", "unilateral

intervention" and "democratic intervention".

Brownlie reminds us that:

"[T] the doctrine [of humanitarian intervention] was inherently

vague and is only open to abuse.

Powerful states could take such measures and when military

operations were justified as "Humanitarian intervention", this

33

was just one of the many features offered and circumstances

often indicated the presence of selfish motives ”35.

Writers, such as Brownlie and Chesterman, adopt the restrictive

approach to the interpretation of Articles 2, paragraphs 4 and 51

of the UN Charter while US writers such as D’Amato, Reisman

and Tesón adopts what is known as the extensive approach

(D’Amato, 1996, Reisman, 1990 and Teson, 1996). Supporters

of the restrictive approach argue that even though the General

Treaty for the renunciation of war as an instrument of national

policy known as the Kellog-Briand pact of 1928 (from the

name of the American secretary of

State and the French Foreign Minister )signed in Paris prohibits

the use of war, the war remained lawful anyway. So when the

United Nations Charter was adopted in 1945, one of its goals

was to remedy the shortcomings of the

Pact of Kellog-Briand making Article 2, paragraph 4, what is

the pivot of the current ius ad bellum. Article 2, paragraph 4,

avoids using the term "war", its prohibition transcends war and

covers forced measures of all kinds.

They also argue that in the adoption of the United Nations

Charter in 1945, the exercise of both forms of self-defense

(individual and collective) is subjected to an essential double

check: (i) self-defense must be reported to the Security Council

as soon as possible and (ii) the exercise of the right ends with

the adoption of

the appropriate measures.

35 Brownlie, I. (1963). International Law and the Use of Force by States. Oxford:

Clarendon Press.

http://dx.doi.org/10.1093/acprof:oso/9780198251583.001.0001)

34

1.6.1 Use of Force in Protection of Nationals Abroad?

Proponents of the extensive approach adopt different devices to

annul the provisions of Article 2, paragraph 4, and 51 of the

United Nations Charter or to drive a horse and a coach through

these provisions.

One of their arguments was the protection of nationals abroad.

While the principle of non-intervention left states a wide

discretion in treating their citizens in the way they considered

most appropriate, the same principle did not give nations the

absolute right to abuse aliens within their borders36 . It should

be emphasized that Judge Lauterpacht observed the paradox

that "the individual in his capacity as an alien enjoys greater

protection from international law than his character as a citizen

of his own State"37. When another state has violated the

minimum level of treatment that must be granted to foreigners,

International law has sanctioned the use of force so called “self-

help” from the state of nationality to protect his life and

property of citizens abroad 38.

36 See Lillich, Forcible Self-Help by States to Protect Human Rights, 53 IOWA L. REv.

325, 326-27 (1967)

37 H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 121 (1950).

38 Borchard, supra note 12, at 346-47; F. DUNN, THE PROTECTION OF NATIONALS

19 (1932); 2 C. HYDE, INTERNATIONAL LAW Section 202, at 647 (2d rev. ed. 1945);

D. BoWETr, SELF-DEFENSE IN INTERNATIONAL LAW 87 (1958); L. McNAIR,

THE

35

Despite the prohibition of the Charter on the use of force,

however, most jurists continue to assert the right of a state to

use armed force for the protection of its citizens who suffer

injuries in the territory of another state 39. In fact, with the

exception of Brownlie and Ronzitti, most of the authors who

affirm the absolute interpretation of article 2, paragraph 4, also

support the legal validity of the doctrine that allows the rescue

of citizens abroad through military coercion.

The so-called rescue doctrine finds broad support in the practice

of states during the post Charter era . It is possible to give some

examples in this sense: the need to protect the lives of citizens

abroad has been invoked as justification by the United States in

the intervention of Lebanon of 1958,14 the Dominican

operation in 196540, the Mayaguez incident, the hostage rescue

mission in Iran, 3 7th and invasion of Grenada, 38 of the United

Kingdom in the intervention threatened in Iran in 1951 and in

the Suez crisis in 1956; by Belgium in the Congo operations of

1960 and 1964; from Egypt in his raid Lamaca in 1978 'and in

the rescue attempt in Malta in 1986; and finally by Israel in his

raid on Entebbe in 1976 41. While it is true that for a large

39 D. BoWETr, SELF-DEFENSE IN INTERNATIONAL LAW 87 (1958); L. McNAIR,

THE LAW OF TREATIES 209-10 (1961); VAN PANHYS, THE ROLE OF

NATIONALITY IN INTERNATIONAL LAW 113-14 (1959); Lillich supra note 10, at 216; Nanda, The United States Action in the 1965 Dominican Crisis: Impact on World

Order -UN Part 1, 43 DENVER L.J. 439, 460 (1966).

40 Behuniak, The Seizure and Recovery of the S.S. Mayaguez: A Legal Analysis of the

United States Claims, 82 MIL. L. REV. 157 (1978); Friedlander, The Mayaguez in

Retrospect: HumanitarianIntervention or Showing the Flag?, 22 ST. Louis U. L.J. 601

(1978); Paust, The Seizure andRecovery ofthe Mayaguez, 85 YALE L.J. 774 (1976).

41 Green, Rescue at Entebbe-Legal Aspects, 6 ISRAEL Y.B. HUMAN RIGHTS 312

(1976); Krift, Self-Defense and Self-Help: The IsraeliRaid on Entebbe, 4 BROOKLYN J.

36

number of these intervention, criticisms were harshly harsh

from a large number of countries, in reality this criticism was

mainly aimed at the failure of the rescue mission in meeting the

stringent requirements necessity and proportionality and not to

the legality of the rescue.

An attempt was made to explicitly justify the rescue doctrine as

a kind of self-defense authorized by Article 51 of the UN

Charter, but in the end it was not necessary.

There are two main topics that are used to justify the protection

of citizens abroad. The first argument claims that the protection

of citizens abroad does not violate article 2, paragraph 4, of the

Charter of the United Nations because "such an emergency does

not compromise the territorial integrity or political

independence of a state, but simply saves citizens from danger

that the territorial state cannot or does not want to prevent

"(Wingfield, 2000).

It is of particular importance that in the case of the Corfu

Channel 42, the United Kingdom claimed that a dredging the

operation in the Albanian territory has not threatened neither the

territorial integrity nor the political independence of

Albania and Albania have suffered neither territorial loss nor

loss of any part of their independence. However in not

accepting this argument, the International Court of Justice

stated:

"The Court cannot accept this line of defense. The Court can

only consider the alleged right of

intervention as a force policy, as in the past, has given the right

to serious abuses and the like

INT'L L. 43 (1977); Note, Use of Forcefor the Protection ofNationalsAbroad: The

EntebbeIncident, 9 CASE W. RES. J. INT'L L. 117 (1977).

42 Corfu Channel case (Merits) (United Kingdom v Albania) (1949) ICJ Rep 4-38.

37

he cannot, whatever the current defect in the international

organization, find a place in international law “

Territorial integrity , argues Oppenheim, "especially where

coupled with political independence "is with territorial

inviolability "(Oppenheim, 1952). For Brownlie, the terms"

territorial integrity "and" political "

independence "were included in article 2, paragraph 4 of the

Charter of the United Nations in order to" provide specific

guarantees to the little ones

he states, rather than having a restrictive effect”. This is now

the dominant view . Higgins, however, while agreeing with

Brownlie and Oppenheim, that "the use of force, no matter how

short, limited or transient the state"43

territorial integrity ", which the formula of Caroline or

Webster, although suggested long ago, still has operational

relevance and is an appropriate guide to conduct (Higgins,

1995).

The second argument instead considers the words "intrinsic

right of self-defense in the event of armed attack" in the article

51 of the Charter. It is suggested that it is possible to argue that

the defense of citizens is inside and outside

without the territorial jurisdiction of a state it is actually the

defense of the state.

On the other hand, another argument that is used is that of

advocates of democratic intervention who state that the term

"political sovereignty" is anachronistic when applied to non-

democratic governments and should instead be replaced by

"popular sovereignty" attributed to individual citizens of a state

(Reisman, 1990). The unilateral intervention to support or

43 Higgins, R. (1995). Problems and Process: International Law and How to Use it (pp.

240-244). Oxford:

Clarendon Press. http://dx.doi.org/10.1093/law/9780198764106.001.0001

38

restore democracy does not violate state sovereignty and,

consequently, the UN charter.

Political sovereignty is the right to govern a delimited territory

and the consequent population residing within it. The world

order can be traced back to the peace of Westphalia when, after

thirty years of bloody wars, in 1648 sovereignty was recognized

to sovereign states and states that from that moment existed in a

horizontal relationship of equality (Kissinger, 2015).

Democratic intervention leaders argue that democratic

intervention is compatible with Article 2, paragraph 4 and

article 51 of the UN Charter: this would mean that a unilateral

intervention to support or restore democracy

it would not violate state sovereignty. So for example, the

massacre of the Chinese government in Tiananmen Square to

maintain an oligarchy against China's wishes was a violation of

Chinese sovereignty (Reisman,1990). But Reisman didn't

realize it was that if the students had won on Tiananmen

Square, they would have done it rejected by over 900 million

Chinese paesants (O’Brien, 1989) .

Apart from this political consideration, Kissinger in On China

noted the unintended consequence of the attempt to modify the

domestic structure of a country of China's greatness from the

outside and recognized that "Western concepts of human rights

and individual freedoms may not be directly translatable, over

a finite period of time oriented towards Western politics and

news cycles, towards a civilization for millennia ordered

around different concepts "(Kissinger, 2011).

The two interventions mentioned by the representatives of the

democratic intervention are Grenada (1983) and Panama (1989)

- which remain highly doubtful (D’Amato, 1990, Reisman,

1990). Another doubt is

39

the democratic intervention and the intervention of Tanzania in

Uganda (1979).

In April 1979, President Idi Amin's brutal rule ended ,

following his overthrow by Tanzanian troops. Humanitarian

considerations have played an important role. Tanzania's

intervention has been seen by some scholars as an act of

liberation (Tesón, 1996) but rejected by others as a precedent in

support of the legality of humanitarian intervention (Cassese,

2005). Cassese's rejection of the Tanzania-Uganda case as

authoritative precedent for humanitarian intervention is

supported by two arguments. The first is that Tanzania has

never relied on it

for humanitarian reasons. President Julius Nyerere of Tanzania

declared it as his responsibility to overthrow the Ugandan

president, he had the "right" to overthrow Amin because Amin's

government was a government of criminals. The second reason

is that Tanzania was based on the concept of "invasion of the

territory of Tanzania in October 1978 and the annexation on

November 1 of the territory of Tanzania north of The Kagera

salient, which was equivalent to war".

Combined with considerations of self-defense Cassese argues

that the United Nations Charter does not authorize individual

states to use force against other states in order to stop atrocities,

and that such use can only be done when the Security Council

considers it exceptionally justified and authorizes it (Cassese,

2005)

40

1.7 The Lawful Uses Of Force Authorized By The UN Security

Council

As mentioned previously in the chapter ,the UN Charter

contains two exceptions to the general prohibition on the use of

force in Article 2(4): Security Council authorization and self-

defence . Consent of the territorial State is not considered as an

exception, on the condition that where it is present, is not a use

of force contrary to Article 2(4). The authorization of the use of

force by the UN Security Council is the legal exception to the

prohibition of the use of force in Article 2, paragraph 4. The

legal source of such power of the Council to authorize the use

of the force is contained in Chapter VII of the Charter, which

concerns action with respect to threats to the peace, breaches of

peace and acts of aggression44 . However, the power that the

Council has to authorize individual States or unions of States to

the use of force in its name, is not explicit in Chapter VII (or

elsewhere in the Charter). Initially it was envisaged that the

forces made "available to the Security Council" by the Member

States pursuant to Article 43 would take forced action, at the

request of the Council 45. However, no permanent force

actually was created after the events that marked 1945 and the

practice of the Council of Authorities to act according to

Chapter VII evolved and changed over time46 .

To be in line with Chapter VII, the Council must first provide to

determine the existence of a "threat to the peace, violation of

44 As opposed to Chapter VI, which deals with the pacific settlement of disputes.

45 E. de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford:

Hart, 2004), at pp. 256-262.

46 Ibid. This evolution of the power of the Council to authorise force is strengthened when

one considers Articles 42 and 48 of the Charter together.

41

the peace or act of aggression" (Article 39). This

determination is generally included in a resolution by which the

Council exercises its powers under Chapter VII47 . On the basis

of this determination, the Council can: "undertake such actions

by air, sea or land that may be necessary to maintain or restore

international peace and security ..." (Article 42). This, has been

accepted and interpreted as having the power to authorize

states, or in some cases international organizations, to use force.

To reach a greater legal clarity, it is always preferable that

resolutions ,authorizing the use of force refers to Chapter VII,

or Article 42( as practice shows)but this is not essential. What is

fundamental ,instead is that there is a formulation of the

Council decision authorizing the use of force. This does not

mean, however, that the Council should make explicit and make

direct references to the use of force in its resolution, (which is

not part of its tasks); on the contrary, it refers to the need that

when the Council authorizes States to take "all necessary

means" or "all necessary measures", such terms may , and

usually do, refer to the use of force 48. Clarity in this regard is

essential.

The resolution will then describe the task to be performed by

the authorized operation and will frequently request reports

47 It is not the case that a reference to Chapter VII in a Security Council resolution

necessarily indicates that the use of force has been authorized. The Council may make

recommendations under Chapter VII, as well as take decisions. Furthermore, the Council

may exercise Chapter VII powers short of the use of force: it can “call upon the parties

concerned to comply with such provisional measures as it deems necessary or desirable”

(Article 40), or take measures not involving the use of armed force (Article 41).

48 See N. Blokker, “Outsourcing the Use of Force: Towards More Security Council Control of Authorized Operations?”, in M. Weller (ed.), The Oxford Handbook of the Use of Force

in International Law (Oxford: Oxford University Press, 2015), at p. 213.

42

from the Council on how it should be conducted and

continued49 .

In the interpretation of a resolution, there are various

circumstances that can be taken into consideration and can be

used, inter alia, the statements made by Members of the Council

at the time of adoption . It must be emphasized that, while the

resolutions of the Council may be ambiguous and require

careful interpretation,on the contrary, there is no "implicit

authorization": either the force was authorized by the Council

or it was not50 .

The degree of the supervision of the Council must be analyzed

under different profiles: first of all ,there is the need to analyze

the extent of that authorization;then, the nature of any

obligation to report to the Council; and finally, if a specific

authorization encounters time restrictions51 .

The authorized use of force must respect both the necessity

criterion and the proportionality criterion. The necessity must

be understood in a double sense. First, the Council should

authorize the use of force only if it is convinced that unforced

measures "would be inadequate or have proved to be

inadequate" (Article 42). Secondly, the strength of the

authorized State (s) must be necessary to achieve the mandate

actually provided by the Council. Likewise, even the authorized

49 he Use of Force against Da‘esh and the Jus ad Bellum”, in 1 Asian Yearbook of Human

Rights and Humanitarian Law 9 (2017).

50 On the interpretation of Security Council resolutions, see Accordance with International

Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory

Opinion, I.C.J. Reports 2010, p. 403, at p. 442, para. 94.

51 Blokker,, at pp. 202-226.

43

use of force must be proportional in a double sense. First,

Article 42 allows the Council to take action that is "necessary to

maintain or restore international peace and security", which

suggests that it should only authorize an action that is

proportional to the need to achieve this same purpose.

Secondly, for the State(s) which use force, the action must be

proportional to the objectives established by the authorization

52.

But sometimes , the requirements and the scope of that

authorizations of the Council have been interpreted and applied

in a manner which have had implication for the efficiency of the

collective security system enshrined in the Charter : one

example should be the reluctance of some members of the

Security Council to authorize the use of force in Syria in

2013.This could be derived in part from what they considered

exaggerated interpretations of previous authorizations.

“The argument of revival”advanced by the United States and

others in relation to the 2003 intervention in Iraq shows some of

the difficulties encountered in the interpretation in relation to

the authorization of the resolutions and has raised important

questions with regard to the correctness of the authorization

process of the Council 53.At this point, while resolution 1441

(2002) did not use the phrase "all the necessary means /

measures" in this way, explicitly providing Iraq with "a final

opportunity to comply" - The United States (and the allies)

52 J. Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge:

Cambridge University Press, 2004), at pp. 188-212.

53 US position in W. Taft and T. Buchwald, “Preemption, Iraq, and International Law”, in

97 American Journal of International Law 557 (2003).

44

argued that, together with resolutions 678 (1991) (which

authorized the force in response to the invasion of Kuwait), and

687 (1991) (which revoked that authorization subjecting it to

certain conditions), Resolution 1441 amounted to the

reawakening of an authorization that had previously been

granted. The main argument was that resolution 1441 found

Iraq in violation of the conditions established in resolution 687,

therefore, "a revival" of the original authorization of 678. It

must be however underlined that this argument was

nevertheless considered unconvincing by a large majority of

academic commentators. The problem was addressed, for

example, in the reports of the Netherlands (Davids) and the

United Kingdom (Chilcot) in Iraq 54. Although the Chilcot

inquiry did not intend to reach the determinations of Law 55, it

was nevertheless far from presenting the legal arguments of the

United Kingdom in a favorable light, concluding on the

contrary that "the actions of the United Kingdom have

undermined the authority of the Security Council ". Another

example in which the interpretation and application of an

authorization resolution was very ambigual and thorny was the

resolution 1970 (2011) relating to Libya. It has sometimes been

stated that the Security Council has proceeded to authorize the

54 Rapport Commissie-Davids, Rijksoverheid (Dutch Government), 12 January 2010

(Davids Commission) (available at:

<www.rijksoverheid.nl/binaries/rijksoverheid/documenten/rapporten/2010/01/12/rapport-

commissie-davids/rapport- commissie-irak.pdf>); Report of the Iraq Inquiry (Report of a

Committee of Privy Counsellors), 6 July 2016 (Chilcot Inquiry) (available at:

<www.iraqinquiry.org.uk/the-report>

55 Chilcot Inquiry, at paras. 99-100. See also C. Henderson, “Reading Between the Lines:

The Iraq Inquiry, Doctrinal Debates, and the Legality of Military against Iraq in 2003”, in

87 British Yearbook of International Law (2017, forthcoming).

45

use of the force retroactively, but if this has actually happened

in practice it is still doubtful 56. The fact that the Council takes

action to restore situations aimed at maintaining peace and

international security after an illegal (or questionable) use of

force cannot in any way be seen as a confirmation of the

original use of force, as was, for example, asserted by some

after the intervention in Kosovo.

1.8 Humanitarian Intervention : a new possible exception to the

use of force for preventing human right atrocities?

“If international law is, in some ways, at the vanishing point of

law, the law of war is, perhaps even more conspicuously, at the

vanishing point of international law.”57

And it is precisely in international law that the term

"humanitarian intervention", which will be addressed in the

course of this paragraph, refers to the use of force across state

borders by a state (or group of states acting together) for

prevent or terminate a humanitarian catastrophe that affects

people other than their own citizens, without the permission of

56 resolutions passed in the immediate aftermath of 9/11 (UNSC res. 1368 (2001) and 1373

(2001)), and – more controversially – UNSC res. 2249 (2015) on Da’esh.

57 (Lauterpacht, 1952)

46

the State in whose territory this force is directed 58. However,

the concept of Humanitarian intervention is difficult to define

with precision . Most authors, though, adhere to a traditional

definition, defining humanitarian intervention as an action to

“prevent a state's denial of fundamental rights to, and

persecution of, its own citizens in a way that shock[s] the

conscience of mankind."'

On the contrary,if authorized by the Security Council, in

accordance with the procedures and requirements governing its

use, humanitarian intervention will be lawful as a response to a

"threat to peace", within the normal functioning of the Council

Chapter VII powers. The starting point in considering the

legality of any humanitarian intervention today is the

observance of the principles of the United Nations Charter. The

Charter in fact establishes the sovereign equality of States

(Article 2, paragraph 1), the obligation to resolve disputes

peacefully (Article 2, paragraph 3), the prohibition of the use of

force (Article 2, paragraph 4) and the principle 124 of non

intervention in the national jurisdiction of states (Article 2,

point 7). These principles, were then developed in the

Declaration on Principles of International Law and Law

concerning Friendly Relationships and Cooperation between

States in Compliance with the Charter of the United Nations

(GAR 2625 (XXV) of 24 October 1970. In order to be

considered legal, humanitarian intervention must be justified

under international law and therefore be consistent with these

principles or fall within an express and appropriate exception to

58J. L. Holzgrefe, “The Humanitarian Intervention Debate”, in J. L. Holzgrefe and R.

Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas

(Cambridge: Cambridge University Press, 2003), at p. 18.

47

their application. Since the use of force against a state, even for

humanitarian reasons, violates the prohibition of the use of

force in Article 2, paragraph 4, of the Charter of the United

Nations, must in principle

to be shown that this use of force is not contrary to the

provision, or that it may in some way fall under one of the two

exceptions laid down in the prohibition, namely authorization

by the Security Council pursuant to Chapter VII of the Charter

or self-defense under Art. 51. If this is not the case, then the

argument in support of the legality of the intervention must rest

on a further demonstration than a further exception to the

prohibition of the use of force has emerged as a matter of

customary international law in a way that undermines the effect

of the prohibition set out in Article 2, paragraph 4 of the

Charter59.

The legally debated issue, concerns the possibility of using

force, in the absence of an authorization from the Security

Council in cases where serious violations of fundamental

human rights have already occurred (or will occur). The United

Nations undertake to recognize the sovereignty of the state, and

the Security Council preserves peace, security and human rights

through collective security measures. The intention of the

Charter-writers was to make illegal any use of military force

except those contained in the same Charter. Following this

principle, the use of force in unilateral humanitarian

intervention should be considered illegal ;in fact the text of the

UN Charter does not support the right to use force to prevent a

humanitarian catastrophe. It has been argued by some scholars

59 Lowe, Vaughan and Tzanakopoulos, Antonios, Humanitarian Intervention (October 15,

2010). MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL PUBLIC LAW,

Rüdiger Wolfrum, ed., Oxford University Press, 2012. Available on SSRN:

https://ssrn.com/abstract=1701560

48

that the wording "against the territorial integrity or political

independence of any state, or in any other way incompatible

with the purposes of the United Nations" in Article 2 (4) could

open a small door of ambiguity in this sense, since a targeted

humanitarian action cannot be grasped within this sentence and,

therefore, it will not in any way violate the prohibition of using

force 60. On the contrary, however, the travaux préparatoires of

the Charter unequivocally confirm that, apart the use of force in

self-defense, the prohibition of article 2, paragraph 4, was

intended to be all-encompassing with regard to all types of

unilateral uses of force . The main concern of supporters of the

illegality of humanitarian intervention is based on the fear of

potential abuses by stronger states that seek political gain at the

expense of weaker states: in fact, states that wish to engage in

war, could invoke this too easily doctrine and use it as a pretext

for illicit, selfish or political goals. At the same time, many of

the weaker states would not be able to employ humanitarian

interventions because of their inability to prevent human rights

abuses 61.

60 F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality (Irvington-On-

Hudson: Transnational, 2nd ed., 1997) at p. 151; M. Reisman and M. McDougal,

“Humanitarian Intervention to Protect the Ibos”, in R. Lillich (ed.), Humanitarian

Intervention and the United Nations (Charlottesville: University Press of Virginia, 1973) at

p. 177. This argument was advanced by Belgium in relation to NATO action in Kosovo in

1999: Legality of Use of Force (Serbia and Montenegro v Belgium), Oral Proceedings,

Public Sitting (10 May 1999), at p. 12.

61 Jost Delbrilck, A Fresh Look at HumanitarianIntervention Under the Au- thority of the

United Nations, 67 IND. L.J. 887, 891 (1992) ("[T]he door to purely arbi- trary

intervention, that is, acts of aggression in disguise, would be wide open."); see also Schachter, supra note 7, at 1629 ("The reluctance of governments to legitimize foreign

invasion in the interest of humanitarianism is understandable in the light of past abuses by

powerful states.").

49

1.9 The Dilemma of Intervention

In light of the analysis carried out in the previous paragraph, the

only way in which humanitarian intervention (without the

consent of the State in which the intervention takes place or the

authorization of the Security Council) could be seen as a legal

exception to the prohibition of the use of force ,is if the state

practice and opinio juris recognizes it establishing its status as a

further exception in customary international law. These usual

rules ,called “state practice” derive from the actions of states 62.

Over time, the "practice of the state" becomes the norm, and

therefore become legitimate.

There are a small number of examples of state practices since

the end of the Cold War that could support the emergence of a

costumary practice of humanitarian intervention in favor of

such thesis. The first of these was the use of force by the

Economic Community of West African States in Liberia in

1990, to put an end to the massive atrocities that occurred

during the civil war 63.The ECOWAS military intervention has

62 Shaw. "It is how states behave in practice that forms the basis of customary law ...." Id.

63 Some commentators have suggested that there may be State practice during the Cold War

that might support the emergence of a customary exception of humanitarian intervention,

with the most commonly cited instances being India’s intervention in East Pakistan

(Bangladesh) in 1971; Vietnam’s intervention in Cambodia in 1978; and Tanzania’s

intervention in Uganda in 1979. See T. Weiss, Humanitarian Intervention (Cambridge:

Polity Press, 2nd ed., 2016), at p. 41 (“In retrospect, all three [of these examples] are

frequently cited as evidence of an emerging norm of humanitarian intervention”). However,

in all three of these situations, the use of force was primarily portrayed by the intervening

State as an exercise of the right of self-defence. See UN Doc. S/PV.1606 (4 December

1971), at pp. 14, 17 (India); UN Doc. S/PV.2108 (11 January 1979), at pp. 12-13

(Vietnam); Africa Contemporary Records (1978-1979), at B395, B433 (Tanzania).

50

not been internationally condemned as a violation of the

prohibition of the use of force. In fact, the President of the

Security Council released two statements in which members of

the Security Council "praise the efforts made by heads of state

and government of ECOWAS to promote peace and normality

in Liberia64" and "to bring the Liberian conflict towards a

rapid conclusion 65".

Likewise, the United Kingdom has applied for humanitarian

intervention in relation to the creation of the so called “safe

havens” in northern Iraq during the Arab Spring of 199166 .

For the United Kingdom this request represented "the

underlying justification of the No-Fly Zones" in northern and

southern Iraq. However, it is equally remarkable that the United

States attempted to justify the same operation by referring to

Moreover, the international reaction to these instances was not such that it could have been

interpreted, even implicitly, as embracing the idea of a new unwritten exception to the

prohibition of the use of force when force is used to avert an impending humanitarian

catastrophe. For the condemnation of these uses of force as violations of the prohibition of

the use of force, see, for example, UN Doc. S/PV.1606 (4 December 1971), at pp. 18, 22

(in relation to India’s action); UN Doc. S/PV.2108 (11 January 1979), at p. 10, and UN

Doc. S/PV.2110 (13 January 1979), at p. 79 (in relation to Vietnam’s action); and Keesing’s

25 (1979) 29841 (in relation to Tanzania’s action).

64 UN Doc. S/22133 (22 January 1991).

65 UN Doc. S/23886 (7 May 1992). See also UNSC res. 788 (1992) concerning Liberia; C.

Walter, “Article 53”, in B. Simma et al. (eds.), The Charter of the United Nations: A

Commentary, Vol. II (Oxford: Oxford University Press, 3rd ed., 2012), goes so far as to

interpret the latter resolution as a “subsequent and implicit” authorisation by the Security

Council in accordance with Chapter VII and Article 53(1) of the UN Charter (at p. 1501,

para. 66).

66 G. Marston (ed.), “United Kingdom Materials on International Law 1992”, in 63 British

Yearbook of International Law 615 (1992), at pp. 827-828

51

Security Council Resolution 688 , rather than on a separate plot

of humanitarian intervention 67.

But the most significant example of the state's practice of the

notion of humanitarian intervention is NATO's action in

Kosovo in 1999, which is still regularly discussed 68. The

United Kingdom stated, that the NATO action was "justified as

an exceptional measure to prevent an overwhelming

humanitarian catastrophe "69 .Similarly, also Belgium argued

that action in Kosovo was legally justified as a humanitarian

intervention, based on the fact that the use of force was of such

a nature that it did not violate the Article 2 (4) of the Charter of

the United Nations. Other NATO member States, explicitly

justified action in Kosovo based on humanitarian intervention.

The notion of the right to use force to avert a humanitarian

catastrophe has met with significant opposition from the state

following the intervention. The attempt by the Russian

Federation to persuade the Security Council to condemn the

military intervention of NATO States in Kosovo as a violation

of the ban on using the force of the UN Charter failed with 12

votes to 3. Shortly thereafter, the G77 "rejected the so-called

right of humanitarian intervention, which had no foundation in

the UN Charter or in international law".

67 N. Wheeler, Saving Strangers: Humanitarian Intervention in International Society

(Oxford: Oxford University Press, 2000), at p. 166.

68 S. Richmond, “Why is Humanitarian Intervention So Divisive? Revisiting the Debate

over the 1999 Kosovo Intervention”, in 3 Journal on the Use of Force and International

Law 234 (2016).

69 UN Doc. S/PV.3988 (24 March 1999), at p. 12.

52

The controversy over Kosovo's intervention led to the creation

of the International Commission for State Intervention and

Sovereignty (ICISS) and to its 2001report. The concept of

responsibility to protect is born 70.

The 2004 report of the Secretary-General’s High-level Panel on

Threats, Challenges and Change, A More Secure World: Our

Shared Responsibility,uses the ‘responsibility to protect’

concept developed by the ICISS, underlining

“the emerging norm that there is a collective international

responsibility to protect, exercisable by the Security Council

authorizing military intervention as a last resort, in the event of

genocide and other large-scale killing, ethnic cleansing or

serious violations of international humanitarian law which

sovereign Governments have proved powerless or unwilling to

prevent” .

The 2005 Secretary General's report, In Larger Freedom, also

dwelt on and commented on the responsibility to protect.71 Just

as, in 2005, heads of state and government clearly stated that in

the event of "genocide, crimes of war ", ethnic cleansing and

crimes against humanity" were

70 Report of the International Commission on State Sovereignty and Intervention: The Responsibility

to Protect (Ottawa: International Development Research Centre, 2001) (available at:

<http://responsibilitytoprotect.org/ICISS%20Report.pdf>). This was preceded by a report by the

Danish Institute for International Affairs. See Humanitarian Intervention: Legal and Political

Aspects (Copenhagen: Danish Institute of International Affairs, 1999

71 In Larger Freedom: Towards Development, Security and Human Rights for All,

53

“prepared to take collective action, in a timely and decisive

manner, through the Security Council, in accordance with the

Charter, including Chapter VII, on a case-by-case basis and in

cooperation with relevant regional organizations as

appropriate, should peaceful means be inadequate and national

authorities are manifestly failing to protect their populations

from genocide, war crimes, ethnic cleansing and crimes against

humanity”.

1.10 Beyond the Right of Humanitarian Intervention : some

critical reflections

While the High Level-panel report of the 2004 , the 2005

Secretary General's report and the results of the 2005 World

Summit all supported the doctrine of responsibility to protect,

none of these documents entirely had any reference to a

unilateral right of humanitarian intervention . In fact, emerged

the need for any forced action ,to be authorized by the Security

Council. The long debates in the General Assembly of April

2005, on the occasion of the presentation of the report In Larger

Freedom, did not work in any way in favor of this right: the

States that found themselves facing the question of

humanitarian interventions held that was a matter that the

Security Council had to decide, excluding that unilateral action

was permitted in any case 72.

72 UN Doc. A/59/PV.86 (6 April 2005); UN Doc. A/59/PV.87 (7 April 2005); UN Doc. A/59/PV.88

(7 April 2005); UN Doc. A/59/PV.89 (8 April 2005); and UN Doc. A/59/PV.90 (8 April 2005).

54

Therefore, emerges that the General Assembly (that is, the

membership of the United Nations as a whole) has opted for a

solution that envisaged that the law enforcement action to

protect people from the humanitarian catastrophe fell within the

competence of the Security Council and not in individual

States.

However, this does not mean that the idea of a costumary law of

unilateral humanitarian intervention has disappeared from the

international scene. For example, in August 2013, in connection

with the alleged use of chemical weapons by the Syrian

government, the United Kingdom stated that "a legal basis [to

use force was] ... available, under the doctrine of intervention

humanitarian [under certain conditions] ... " 73. Likewise In

2013, Denmark issued a legal opinion which was in principle

along the same line . Despite various considerations, the right to

humanitarian intervention remains controversial among writers.

The great majority is of the opinion that the practice of the State

since 1945 is insufficient to sustain that humanitarian

intervention, without the consent or authorization of the

Security Council, is legitimate 74. Beyond the consolidated

73 Prime Minister’s Office, “Chemical Weapon use by Syrian Regime: UK Government Legal

Position”, policy paper (29 August 2013)

74 C. Henderson, “The UK Government’s Legal Opinion on Forcible Measures in Response to the

Use of Chemical Weapons by the Syrian Government”, in 64 International & Comparative Law

Quarterly 179 (2015), at p. 194; Rodley, supra n. 164, at pp. 793-794; Corten, supra n. 8, at pp. 873-

874; S. Murphy, Humanitarian Intervention: the United Nations in an Evolving World Order

(Philadelphia: University of Pennsylvania Press, 1996); Randelzhofer and Dorr, supra n. 12, at pp.

224-225; Dinstein, supra n. 8, at pp. 73-75; A. Sarvarian, “Humanitarian Intervention after Syria”, in

36 Legal Studies 20 (2015); M. Byers and S. Chesterman, “Changing the Rules about Rules?

Unilateral Humanitarian Intervention and the Future of International Law”, in J. L. Holzgrefe and R.

Keohane, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge:

Cambridge University Press, 2003), at pp. 177, 202-203; P. Hilpold, “Humanitarian Intervention: Is

There a Need for a Legal Reappraisal?”, in 12 European Journal of International Law 437 (2001).

55

position of the United Kingdom - which, from the Cold War,

was one of the main supporters of an exceptional justification

and strictly limited to the use of force by States to avert a

crushing humanitarian catastrophe75 - there remains only a

limited amount of state practice and opinio juris that could

potentially be seen as legal basis for unilateral humanitarian

intervention.

A minority of writers believe that the use of force to avert a

humanitarian catastrophe is lawful, 76 while others point out that

the use of force to avert a humanitarian catastrophe will be

transformed, under strict conditions, into a “legal gray area”77.

It must be acknowledged, however, that the existence of such

minority positions, at least suggests that it is difficult to argue

that a right to humanitarian intervention is undoubtedly

illegitimate, a point that could be relevant with respect to the

question of whether a humanitarian intervention is equivalent to

an "act "of aggression, which due to its character (...)

constitutes a blatant violation of the Charter of the United

75 C. Greenwood, “Humanitarian Intervention: The Case of Kosovo”, in 10 Finnish Yearbook of

International Law 141 (1999); S. Chesterman, Just War or Just Peace: Humanitarian Intervention

and International Law (Oxford: Oxford University Press, 2001).

76 Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention: Its Current

Validity under the UN Charter”, in 4 California Western International Law Journal 203 (1974), at p.

269; R. B. Lillich, “Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive

Alternatives”, in J. N. Moore (ed.), Law and Civil War in the Modern World (Clark: Johns Hopkins

University Press, 1974), at p. 229; M. Weller, “Introduction: International Law and the Problem of

War”, in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford:

Oxford University Press, 2015), at pp. 3, 31 (at least leaning in the same direction)

77 A. Roberts, “The So-Called Right of Humanitarian Intervention”, in 3 Yearbook of International

Humanitarian Law 3 (2000); R. Kolb, Ius contra Bellum: Le Droit International Relatif au Maintien

de la Paix (Basel/Bruxelles: Helbing Lichtenhahn/Bruylant, 2nd ed., 2009), at p. 315; T

56

Nations". The supporters of the minority position are those who

strongly maintain that “no person can remain injured in the

midst of the government-sponsored massacre ". The defensive

wars to protect human rights are considered the only ones

morally justifiable wars .

Furthermore, these authors recognize that, in practice, the

collective security measures of the United Nations usually fail

to prevent the most serious cases of human rights violations.

There are numerous examples of the obvious failures of the UN

collective security measures to provide international security for

which they were designed. Such examples include the recent

cases of former Yugoslavia, Somalia, or Sudan. Furthermore,

the fact of not ending or at least responding to extreme

violations of human rights can lead dictators to believe that they

can commit enormous human rights remaining unpunished. It

was claimed that in the era of the UN, collective security

measures of Security Council may not be able to prevent

serious tragedies and their destructive flows, and that an

individual state could maintain the right to unilateral action.

Finally, it should be noted that “the conclusion with lex lata

majority of the illegality does not prejudice the debatable lex

ferenda desirability of a legitimate humanitarian intervention ,

or the significant moral tensions that exist in relation to the

need to balance the protection of human rights with the notion

of state sovereignty” 78.

78 B. Simma, “NATO, the UN and the Use of Force: Legal Aspects”, in 10 European Journal of

International Law 1 (1999) (examining the Kosovo intervention from a moral perspective, but not

arguing that conclusions as to the intervention’s moral desirability meant that it was lawful). It

should be noted that some writers have gone further and incorporated, in one form or another, what

they see as the ‘moral case for lawfulness’ in their legal analysis of humanitarian intervention.

57

1.11 Final Considerations on the Use of Force and the

Applications of Art 2(4)

The law consists of a system of authorized coercion in which

force is used to maintain public order and in which coercion is

not strictly prohibited unless expressly authorized. Thus ,on the

contrary of what is generally belived,law and coercion are not

dialectical absolutes. On the contrary, formal legal provisions

are not necessary when there is spontaneous social uniformity;

therefore recourse to the law is not necessary. The law is made

when there is disagreement: the powerful members of the group

called “society” imposed their vision in the name of common

interest through the instrument of law with its various range of

sanctions. The international legal order diverges from the

general national legal systems only with regard to the

organization and centralization of the use of coercion. In

national systems, coercion is organized, relatively centralized

and monopolized by the state apparatus. In the international

system however, it is not.79 These jurisprudential principles

must be taken into consideration in a rational examination of

Article 2, paragraph 4, of the Charter of the United Nations. His

extensive prohibition of the threat or use of force on the

international scene, however, did not represent an autonomous

ethical assertion of this prohibition any more than previous

79 W. M. Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int'l L.

(1985). Available at: http://digitalcommons.law.yale.edu/yjil/vol10/iss2/5

58

attempts to moderate its scope at an international level were.

Article 2, paragraph 4, has been included in a complex security

system, established and specified in the United Nations

Charter.80 If the project had worked, it would have avoided the

unilateral use of force. But this initial intention has not been

fully realized.

However, the Charter recognized the inherent limitations of its

organizational structure at international level, reserving the

right to self-defense for States.

The UN security system was based on a consensus among the

permanent members of the Security Council. However, this

consensus , dissolved almost at the beginning of the

organization's history. From that moment , the Security Council

could not operate as originally planned. Part of the systemic

justification for the theory of Article 2, paragraph 4 has

disappeared. At the same time, the Soviet Union announced,the

refusal to accept Article 2(4): "Wars of national liberation," an

open-textured conception basically meaning that wars the

Soviets supported, were not, in the Soviet conception, violations

of Article 2(4). Arkady N. Shevehenko testified:

"[T]he refusal to abandon support for national liberation

movements as a weapon against the Western Powers, and

persistent efforts by the Kremlin to penetrate the nations of the

Third World for the purpose of luring them

into its orbit, imply a willingness to project Soviet military

power over the globe and risk, if necessary, conventional wars.

Here again, the Soviets are guided by Lenin's formulas, which

state that "socialists cannot be opposed to all wars,"

80

59

particularly "revolutionary wars" or national wars by colonial

peoples for liberation" or civil wars. Consequently, the Soviet

leadership favors and instigates some local conventional wars.

In explaining the Soviet military doctrine in 1981, Defense

Minister Dmitri Ustinov called attempts to attribute to the

U.S.S.R. a willingness to launch the "first nuclear strike"

unfounded nonsense, but he said nothing regarding

conventional war."81

Therefore, the U.S.S.R. may continue to neglect Article 2 (4),

ignoring it in practice whenever it considers it appropriate to do

so.

However, the international political system has adapted to the

need for coercion within a legal system, on the one hand, and to

the progressive deterioration of the Charter system, on the

other, developing a code with blurred lines for assessing the

lawfulness of individuals unilateral uses of force. In a sense, the

complexity of the code can be understood by examining, in a

single period of time, the 1979, the unilateral use of force

without the prior authorization of the United Nations.

In 1979, Tanzanian forces invaded Uganda, expelled the

government of Idi Amin and finally revived the government of

Milton Obote. In the same year, the French forces, in a rapid

and bloodless coup, expelled the government of Jean-Bedel

Bokassa from the Central African Republic and installed a

different president. In the same year, Vietnam's government

forces entered Cambodia and tried to oust the Pol Pot

government and replace it with a Vietnam-backed government

led by Heng Samrin. In the same year, Soviet forces entered

81 1. A. SHEVCHENKo, BREAKING WITH Moscow 288 (1985).

60

Afghanistan for the support of a government that perhaps would

not have survived had it not been for the timely intervention and

continued presence and foreign military forces. "This annus, to

paraphrase Auden, was not mirabilis".

The deterioration of the security regime of the Charter has

stimulated a partial recovery of a type of unilateral ad bellum

justification. But in stark contrast to the nineteenth-century

conception, which was neutral from the point of view of values

and extremely based on power, contemporary doctrine refers

only to the clarification of the rights recognized by the

international community but has shown, in general or in a case

particular, an inability to secure or guarantee. Thus, the

assessments of a coercive state can no longer simply condemn

them by invoking Article 2 (4), but must test the lawfulness or

legitimacy by referring to the number of factors, including the

contingency for which coercion is applied.

It appears that nine fundamental categories have emerged in

which variable support for unilateral uses of force is found.

These are: self-defense, which has been interpreted quite

broadly; self-determination and decolonization; humanitarian

intervention; intervention by the military instrument to place an

elite in another state; uses of the military instrument in spheres

of influence and critical defense zones; interventions sanctioned

by treaties in the territory of another state; use of the military

instrument for gathering evidence in international proceedings;

use of the military instrument to enforce international

sentences;and countermisures such as reprisals. The inclusion

of an individual use of force within a particular category does

not mean, however, that it can be considered lawful.

According to the author Reisman, in the determination of any

action, a constant factor (above all a conditio sine qua non) is

61

the need to maintain minimum order in a precarious

international system. Will a particular use of force, whatever its

justification, improve or undermine the world order?

Once an answer to this requirement is provided, attention can be

directed to the fundamental principle of political legitimacy in

the contemporary international scene. It is with key decisions

such as those concerning Namibia82 and Western Sahara83 , the

progress of the right of peoples to determine their political

destinies: Article 2 (4) is the means. The basic policy of

contemporary international law has been to maintain the

political independence of territorial communities so that they

can continue to develop their desire for political organizations

in an appropriate form for them. Article 2 (4), as in the Charter

and in contemporary international politics, supports and must be

interpreted in terms of this key postulate. Every application of

Article 2, paragraph 4, must improve the opportunities for self-

determination in progress. All the interventions are convincing,

the fact is that some may need, in terms of aggregate

consequences, to increase the “likelihood of free choice of

peoples regarding their government and their political

structure”. Others have the objective and consequence of the

manifestation of doing exactly the opposite. There is therefore

no need or justification for treating in a practically identical

way the Tanzanian intervention in Uganda to overthrow the

despotism Amin, on the one hand, and the Soviet intervention

in Hungary or Czechoslovakia to overthrow the popular

82 1971 I.C.J. 16.

83 1975 I.C.J. 4.

62

governments and impose an unwanted regime on a forced

population on the other.84 The author writes :

“In communities without established or durably

institutionalized procedures for the transfer of power, a group

of military officers, without a base of popular support, seizes

the government. In an equally familiar variation of this

scenario, the putsch itself is externally inspired, encouraged

and/or financed. As their control is precarious, the officers

immediately seek the support of an outside Superpower; it

responds by providing military and administrative assistance

within the country and material help and support in external

political arenas. Because of this foreign reinforcement, what

would probably have been an evanescent violation of the

popular will per- sists. Ironically, most of the sequences of this

scenario are compatible with traditional international law and

Article 2(4) as it has been mechanically applied. The usurpers

of power are entitled to recognition as a government if they

appear to have effective control, a doctrine established clearly

since Chief Justice Taft's holding in Tinoco. As such, the new

"government" is entitled to request assistance from abroad.

Other governments responding to it are not deemed to be

"intervening," yet another foreign force, entering the country,

putting the mutinous military back in the barracks and rein-

84 W. M. Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int'l L.

(1985). Available at: http://digitalcommons.law.yale.edu/yjil/vol10/iss2/5

4. Reisman, Coercion and Self-Determination: ConstruingCharterArticle 2(4), 78 AM. J. INT'L L.

642, 644-45 (1984).

63

stalling the ousted government and the former constitutional

procedures would violate the terms of Article 2(4).”85

What Reisman wanted to underline in his work,is the fact that

the effect of an automatic interpretation of Article 2, paragraph

4, could involve far-reaching social and economic changes and

serious deprivation of human rights by numbers and civilian

population. This takes place in a century whose politics is

marked by a greatest mobilization of mass, with a frequent and

radical intervention by the state apparatus.

The scenarios proposed by the author are destructive of the

political independence of the community concerned, as would

also be a massive invasion by the armed forces of another state.

Qualifying the second form of intervention as inadmissible or

illicit and the former as admissible or licit or at least not

accepted by international law would mean violating the basic

policy that international law seeks to achieve. The promulgation

of a rule such as Article 2, paragraph 4, despite its difficulties

and ineffectiveness, is an important result. But it turns out to be

naive to insist that coercion is never used, as coercion is a

ubiquitous feature of social life in its greatness and an

indispensable characterizing component of the law. The most

important issue in a decentralized international security system

is not about whether coercion was applied but whether it was

applied in support of or against the order of the international

community and basic policies, and whether it was applied in

ways in which the consequences include the achievement of the

goals pursued by the community. Given the vastness of the

85 W. M. Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int'l L.

(1985).

Available at: http://digitalcommons.law.yale.edu/yjil/vol10/iss2/5

64

destructive and disastrous power of the weapons in question and

the violence and wickedness that human beings have proved

capable of, such a decentralized security system has often

proved inadequate. But it is a fact. However, the possibility of

making UN security functions effective in the near future is

slight. The effort to improve the organization is always

important and justified. But in the meantime, rational and

responsible decisions will have to be taken in the many cases

that continue to appear on the international scene.

An important part of the control over unacceptable coercion

will be a fundamental re-reading of the legitimate objectives for

which coercion can be used: respect for the fundamental and

lasting values of the contemporary world public order and

above all of human dignity.

Conclusion

The use of force is "channeled and disciplined by the notions

that the members of a society share when the force is legitimate.

In part, these notions are captured by rules of international law

because, over time, the war was perceived not as a Positive

undertaking accomplished by the States, but as a necessary evil,

to be avoided except in the cases expressly provided for and by

laws, for extreme issues and now limited by legal and

multilateral frameworks, guarantor of order and international

salvation. However, the UN Security Council as guarantor of

international balance and stability has not always succeeded in

its initial intentions: many debates are still open and the

65

international scene is still divided into two categories: those

who support a rigid interpretation and strictly literal of the

United Nations Charter, on the one hand, and those who prefer

a more comfortable and broader interpretation on the other.

Among these , we can certainly attribute those that support

humanitarian intervention as a further exception to the

prohibition on the use of force. This has been and still is, one of

the most controversial and debated issues in international law,

which together with its peculiarities and fundamental

characteristics, will be treated in the next chapter.

66

CHAPTER TWO

2 The doctrine of humanitarian intervention

Introduction

The purpose of this chapter is to show how the framework of

human rights law and the consequent change in international

law regarding humanitarian intervention, has evolved. The

origins of the doctrine can be traced back to the beginning of

the modern period and to find its support in the writings of

classical theorists such as Grotius and Vattel. But it is in the

post-war atmosphere that the growing global consciousness of

human rights violations has caught the attention of the

international community like never before, and the question of

intervention for human protection has turned into a serious

question of disputes and debates. As a result, humanitarian

intervention has undergone a transformation. The doctrine of

Responsibility to Protect (R2P) is the result of several years of

diplomatic negotiations on how, when and under what

circumstances the international community has the right or the

power to intervene in another state to protect citizens. The key

to the debate on humanitarian intervention concerns the

intersection between the moral and legal aspects of the

intervention. From a legal point of view, humanitarian

intervention can be seen as a violation of one of the

fundamental principles enshrined in international law: the

political and territorial independence of the state. On the other

hand, it is difficult to oppose moral justice to intervene in order

67

to protect people in another country from serious violations of

their human rights. Critics and commentators are still divided

on this point. The main topic of the chapter is the analysis of the

responsibility to protect, its implications, its controversies and

application of these principles to two significant cases: the

genocide in Rwanda and the case of Lybia. To this end, the role

of the R2P principle will be explored in relation to the

difficulties presented by these two cases. Did it really work or

was it used only as a pretext? Importantly, the invocation of

R2P in Libya has had adverse implications by reacting to the

bloodshed in Syria and this will affect the future of R2P.

2.1 The Concept of Humanitarian Intervention: the Origins and its

Definition in International Law

“People begin to feel that not only is every nation entitled to a

free and independent life, but also that there are bonds of

international duty binding all the nations of this earth together.

Hence, the conviction is gaining ground that if on any spot of

the world, even within the limits of an independent nation, some

glaring wrong should be done … then other nations are not

absolved from all concern in the matter simply because of large

distance between them and the scene of the wrong 86“

What should the international community do when a

government does not respect humanitarian norms and violates

the human rights of its citizens? If there is a responsibility for

86 Giuseppe Mazzini, ‘On Nonintervention (1851)’ in Stefano Recchia and Nadia Urbinati (eds.), A

Cosmopolitanism of Nations: Guiseppe Mazzini’s Writings on Democracy, Nation Building, and

International Relations (Princeton University Press, 2009), 217–18.

68

protecting people from serious human rights violations, which

international player should be responsible for countering these

crimes? Is it permissible to interfere from the outside in the

internal affairs of a sovereign state to prevent mass atrocities

and stop crimes against humanity? These questions are related

to the issue of humanitarian intervention and reveal the current

conflict between two crucial pillars in international relations:

respect for state sovereignty and the defense of humanity. This

intervention dilemma is not just a recent issue; has a long

history 87.

The humanitarian and also moral question linked to contexts of

war and violation of human rights began to arise at the end of

the nineteenth century, in the past century. Humanitarian

intervention as a legal justification for the use of force can be

traced back to Grotius and his thesis that war can be undertaken

as a punishment for the "wicked" (as long as the punisher's

hands are clean), as well as on behalf of the oppressed.

Alberico Gentili had already discussed similar topics

previously, although his focus was more on morale than legal

duties (Chesterman at 14). Later, Emmerich de Vattel accepted

an exceptional right to intervene in support of the oppressed

when they themselves rebelled against an overly oppressive

government, although it rejected any right of intervention or

interference in the internal affairs of another state in other

circumstances. In the era of the pre-UN Charter, there was no

established state practice of relying on a right to humanitarian

intervention to justify the use of force, although then, as now,

academic commentators wrote in support of the concept. The

interventions of the Great Powers in the Ottoman Empire in the

87 S Murphy Humanitarian Intervention—The United Nations in an Evolving World Order

(University of Pennsylvania Press Philadelphia PA 1996)

69

19th century for the protection of the Christian and Jewish

populations of that Empire have often been claimed by jurists as

examples of humanitarian intervention. However, even in those

cases where armed force was actually used, as in the naval

battle of Navarino in 1827 in support of the Greek rebellion or

the French occupation of Lebanon and Syria (at that time parts

of the Ottoman Empire) in 1860-1, the legal justifications

invoked by the States, when offered, were related to the

obligations of the Ottoman Empire treaty, to allow intervention

and the protection of commercial interests, the prevention of

piracy and so on. Even the American intervention in Cuba

during the latter's war with Spain in 1898, sometimes described

as a real humanitarian intervention, was justified by the United

States on the basis of the protection of the citizens and property

of the United States in Cuba, of the protection of the

commercial interests of the United States and even self-defense,

along with a superficial reference in President McKinley's

message of war to "the great dictates of humanity".In the pre-

Charter period, there are strong connections between any kind

of force intervention with a (proclaimed) humanitarian purpose

and, on the other hand, the colonial enterprise 88.The American

intervention in 1898, for example, led Cuba to become an

American protectorate. In all cases of forced intervention in this

period, humanitarian considerations were, when and if present,

mixed with numerous other considerations and were never

invoked exclusively or explicitly as sufficient legal

justifications . The same concept of humanitarian access could

be understood, as we will see in the course of the chapter, as a

direct consequence of a path begun in the past century, aimed at

leading states to take note of the need, especially in wartime

88 N Krisch (2002) 13 EJIL 323 to 330-1

70

contexts, to preserve rights and above all to intervene in favour

of those considered weak. Historically, an important point of

reference should be the conclusion of the Vienna Congress and

the battle against the slave trade. In this context, the behaviour

of Great Britain is significant . Britain, in Vienna, was strongly

committed not only to the establishment of a ban on the slave

trade, but began numerous diplomatic negotiations in favour of

a concrete international mechanism for imposing this ban. To

strengthen its credibility in relation to the new foreign policy

paradigm of a general abolition, London changed the old

foreign policy89. Overall, the policy of British government

suffered from an enormous influence on the part of civil

society. As mentioned at the beginning of this work, the

humanitarian issue and therefore also the humanitarian

intervention is historically posed both from a point of view that

we can define as legal, both as a need of the community itself.

Winners and losers converge, under this approach, in affirming

a humanitarian principle that sees respect for the prerogatives

typical of the human person as the fundamental point.

The group of abolitionists was successful, through the

successful mobilization of public opinion with strong pressure,

an active policy of intervention against the slave trade. In this

way, a remarkable intertwining of civil society and international

politics at the beginning of the nineteenth century came to light.

The new concept of intervention, consisting of an innovative

combination of military and legal means, finally established

itself through individual or bilateral agreements. Through this

international regime of prohibition of the slave trade that was

being established, the new practice of the States to collectively

89 KLOSE F., Il Congresso di Vienna e le origini dell’intervento umanitario, Annali

dell’Istituto storico italo-germanico in Trento, 2015,I, 39 e ss.

71

intervene in defense of humanitarian norms was consolidated.

Principle that would have had to wait half a century to find a

first "officialization". In fact, the doctrine90 identified as the

birth of modern international humanitarian law , the movement

of codification of the uses and customs of war that developed in

the second half of the nineteenth and the beginning of the

twentieth century whose promoters were Henry Dunant and

Francis Liebe.

2.2 Overview of International Humanitarian Law

The successive and most significant stages of the development

of international humanitarian law are marked by the adoption of

the St. Petersburg Declaration of 1868. A declaration that

retains its interest even today, not so much for the concrete

subject it covers, as for the statement contained in its preamble

that the only legitimate aim that states must pursue during the

war, is the weakening of the enemy's military forces, since the

adoption of the Fourth Hague Convention of 1907 concerning

the laws and customs of land war and the Regulations annexed

to it91 . After the catastrophe of the Second World War there

was a major revision of international humanitarian law, with the

adoption, on 12 August 1949, by the representatives of 48

States summoned to Geneva by the Swiss Confederation (in its

capacity as State depositary of the Conventions of Geneva), of

90 PICTET J, Le droit humanitaire et la protection des victimes de la guerre, Institut

Henry Dunant, Leiden, Sijthoff, 1973, pp. 30-32

91 WEISS T.G., COLLINS C, Humanitarian Challenges & Intervention, Boulder,

Colo., Westview Press, 2000, p. 14 e ss.

72

four new conventions concerning the protection of war victims

based on projects developed by the ICRC92. Further

developments in international humanitarian law date back to the

1970s with the Diplomatic Conference on Reaffirming and

Developing International Humanitarian Law applicable in

Armed Conflict, held in Geneva from 1974 to 1977, which led

to its adoption, on 8 June 1977, of two additional Protocols to

the Geneva Conventions, concerning, respectively, international

armed conflicts and non-international armed conflicts. The

conventional activity in the field of humanitarian law is largely

due to the impetus given by the international Red Cross

movement, which certainly went beyond the patterns of the law

of war relating to the protection of victims of armed conflicts:

in particular, reference is made to the rules contained in the

1951 Geneva Convention on the status of refugees and the

provisions that abolish slavery and the trafficking of women

and children93. Considering the extension of the term

"humanitarian", the law examined so far would include, above

all, the norms set up to guarantee the rights of the human

person, in fact the Geneva Conventions of 1949 and Protocol I,

enunciating many provisions for the protection of the human

person in the international armed conflicts, specifically create a

92 The International Red Cross Movement is an international non-governmental

organization that was institutionalized in 1928 by the XIII International Conference of

The Hague, in which the Movement was given the task of coordinating worldwide

other non-governmental international organizations that became its members: the

International Committee of the Red Cross, the International Federation of National

Red Cross and Red Crescent Societies and National Societies, including the Italian

Red Cross and National Red Cross Societies of EU member states.The Movement

operates in the field of humanitarian aid on the basis of seven common fundamental

principles (Humanity, Impartiality, Neutrality, Independence, Voluntary Character,

Unity and Universality) adopted by the XX International Red Cross Conference held

in Vienna in 1965.

93 BONDOLFI A., La guerra giusta in Francisco de Vitoria: un aggiornamento

della dottrina medievale o un cambiamento di paradigma? Conferenza tenuta

presso il Dipartimento di Lettere e Filosofia dell’Università di Trento il 26

febbraio 2015, p. 147 e ss.

73

twofold regulatory order: a first class of rules concerning, in

general, the protection of human rights of civilians and a second

class comprising the protection of human rights in relation to

the application of both the Convention of Geneva that of the

International Conventions of Human Rights94. From these

conventions originated Humanitarian Law to be understood as a

set of conventional and customary rules designed to prevent and

limit in conflict situations, both internal and international, the

human suffering of people who do not take part (or no longer

take part) in hostilities , making the behaviors of the parties

involved more human and placing limits on the use of means

and methods of war. However, it is necessary to specify which

are the two regulatory systems established by the international

community to deal with the "war" phenomenon: 1) jus contra

bellum (law against war): it is the one pursued by the United

Nations Charter and its general prohibition of the use of force;

in fact, the UN condemns the right to resort to force, except in

the case of legitimate defense to be exercised until the Security

Council implements the measures provided for in the Charter;

2) jus in bellum (laws of war): it is an attempt to "regulate" the

armed conflict.

The importance of this second line of action is evident: the UN

system, despite having managed to avert other conflicts, has

failed to prevent numerous conflicts, but unfortunately

increasingly frequent and increasingly frequent tragic for the

peoples involved. The set of these legal instruments together

94 It should be clarified that not all the mandatory rights based on the

International Covenant on Civil and Political Rights of 1966 find, however,

protection in the Geneva Conventions, although the protection of the civilian

population remains always and in any case guaranteed in the event of an

employment regime, even if these are residents of enemy territory. Cfr.

74

with various other regulations that we will also be examined in

the course of this thesis make it clear that the law that applies in

the event of armed conflicts has a dual function: it governs the

conduct of war and protects the victims of armed conflicts.

However, it does not respond to question on the lawfulness of a

armed force (ius ad bellum) which is regulated by the Charter of

the United Nations (UN). International humanitarian law

applies to any armed conflict, regardless of its legitimacy, for

all parties to the conflict. The notion of humanitarian access is

instrumental in making these concepts empirical. In the event

that civil protection is not sufficiently provided with supply

goods and foodstuffs, international humanitarian law provides

for impartial and non-discriminatory humanitarian relief actions

if the parties involved agree. It also obliges the States to

approve and facilitate the rapid and efficient transport of relief

goods. Civilians have the right to contact any organization who

can send them the help. In the case of armed conflicts,

humanitarian organizations often cannot access civilians in need

of protection, for example because the conflicting parties do not

allow such access, due to geographical or logistical difficulties,

bureaucratic obstacles or security considerations95.

Humanitarian access to be practiced in time of armed conflict

(an expression that has replaced the first term in the

contemporary legal lexicon). Today this construction seems

95 CALORE A (a cura di) , «Guerra giusta»? Le metamorfosi di un concetto

antico, Seminari di Storia e di Diritto, III, Giuffrè, Milano 2003, p. 123 e ss.

75

simplistic even if after the end of the Second World War, it has

clearly expressed the separation between the two systems.

Human rights, as far as they are intended to be implemented in

peacetime, remain, in principle, applicable during an armed

conflict limited to their essential norms. Indeed, the conventions

on human rights provide for the possibility for States to suspend

the exercise of certain rights in emergency situations, with the

exception of fundamental rights96.

2.3 Evolution and Practice of Humanitarianism

The decisive moment, in which humanitarian law and human

rights began to approach was in May 1968 during the

"International Conference on Human Rights" of the UN,

meeting in Teherán. For the first time the United Nations

mentioned human rights in relation to armed conflicts, adopting

two resolutions concerning respect for human rights in armed

conflicts. The first, resolution I, entitled "Respect and

application of human rights in the occupied territories", asked

the Israeli government to "respect and apply in the occupied

territories the Universal Declaration of Human Rights and the

96 COLOMBO A., I nodi politici dell’ingerenza umanitaria, «Quaderni di

Relazioni Internazionali», 15 (2011, p. 163 e ss.)

76

Geneva Conventions of 12 August 1949 ". The second,

Resolution XXIII, entitled "Human rights in armed conflicts",

stated that the violence and brutality so widespread in our age,

in particular the massacres, summary executions, torture,

inhuman treatment inflicted on the prisoners, the deaths of

civilians during armed conflicts and the use of chemical and

biological weapons, including napalm bombs, undermine

human rights and generate new brutalities. Furthermore, this

resolution called on all states to adhere to the Geneva

Conventions. The two resolutions of this conference, which will

be taken up and developed by the UN General Assembly,

constitute the starting point of the problem of "respect for

human rights in times of armed conflict", a title which now

appears in all resolutions of the General Assembly concerning

the protection of the human person in times of armed conflict.

At the same time, they represent a principle of elaboration and

change of the concept of humanitarian intervention and

humanitarian law.

The principles of humanitarianism have always been, along the

lines of the values advocated by the Red Cross, such as

humanity, impartiality and neutrality, as well as others less

shared or considered less absolute (independence, universality,

voluntary service, unity). Absolute was the consideration that

all victims had equal dignity, that towards them there was an

obligation of assistance and that the basis of their action was the

77

consideration of the need of others97. The duty of humanitarian

intervention is necessarily manifested , only after the actions of

governments and supranational bodies have proved incapable of

protecting fundamental rights (starting from survival) of groups

of people and of the population; and always starts from the

awareness that something is being done to alleviate the

symptoms of the disaster, not to cure its causes. In the past, the

duty and responsibility before and immediately after the Second

World War, focused exclusively on alleviating short-term

suffering, in times of emergency; now, more and more often,

humanitarian agencies are facing the problem of the context in

which they operate and do not hide the objective of confronting

or even helping to resolve the conflicts in which they find

themselves acting. This is a fundamental change in the very

nature of humanitarianism, as the most drastic or pessimistic

critics seem to argue, or it is a new response to a new historical

situation that has emerged with progressive clarity during the

1990s and has modified above all, before some tragic failures

,first political and then humanitarian of the international

community. The expansion of the concept of humanitarianism

does not respond to an ideological choice of aid agencies, but to

the growing attention that, starting from the end of the Cold

War, we have set ourselves (due to the urgency of the facts and

to greater awareness, even if only superficial or interested). In

97 TERRY F, Condemned to Repeat? The Paradox of Humanitarian Action, Ithaca,

N.Y., Cornell University Press, 2002, p. 269 e ss.

78

particular, the problem develops between the need to give

solutions to the conflicts in progress and at the same time try to

intervene on the context that has favoured them.

The novelty would consist according to authoritative studies98

in a politicization of humanitarianism (both in the sense of

wanting to make politics in the first person and as an

increasingly close bond with governments and supranational

bodies) that would have slowly but inexorably undermined the

original inspiration . In his pamphlet critic Rieff99 recalls that

humanitarian action has never been the most appropriate

response to the endless suffering suffered by poor countries and

that there are no humanitarian solutions to humanitarian

problems. From this point of view, humanitarianism appears

from the beginning as a sort of collision or surrogate for

political failures. But the latter, despite the claims of

independence and the neutralism professions of humanitarian

agencies, has always been present on the scene, influencing in

any case the choices and the behaviour of the aid organizations

(the most evident example is that of the International

Committee of Red Cross and its silence on the Nazi death

98 CHANDLER D, From Kosovo to Kabul. Human Rights and International

Intervention, London, Pluto Press, 2002, p. 365 e ss.

99 RIEFF D, Un giaciglio per la notte. Il paradosso umanitario, trad. it. Roma,

Carocci, 2003, p. 286 e ss.

79

camps in exchange for the possibility of continuing to operate

in the war zones where the German army was present)100.

It should also be pointed out that in international affairs in

recent years there is a recurrent action by states and

governments, which claim to defend human rights and

humanitarian interference as one of the pillars of the new

international post-cold war system101.

In this perspective, various studies102 declare that current

humanitarianism is very different, in practice and in principles,

from that of the founders of the nineteenth century humanitarian

movement. Humanitarianism has become central, from a

marginal point of view, in international politics. This process is

due to a new interpretation (or ideology) of humanitarian

politics and to its growing integration with the theme of human

rights. And it is on this basis that humanitarianism, now

transformed to legitimize international policies, is often

condemned.

The various analyzes point out that humanitarian workers are

more interested in long-term human rights outcomes than in

short-term humanitarian emergency needs.

100 PICCIAREDDA S, Diplomazia umanitaria. La Croce Rossa nella seconda

guerra mondiale, Bologna, Il Mulino, 2003, p. 214 e ss.

101 COLOMBO A., I nodi politici dell’ingerenza umanitaria, «Quaderni di

Relazioni Internazionali», 15 (2011, p. 163 e ss.) 102 MARCON G, Le ambiguità degli aiuti umanitari. Indagine critica sul Terzo

settore, Milano, Feltrinelli, 2002, p. 32 e ss.

80

The case of Biafra is emblematic. The refusal of a neutralism

that prevented not only to take a position - political and moral -

on the reasons of the parties in conflict, but that accepted

complicity in the lack of information on the conflicts

themselves and on the abuses, violence, privations that

accompanied them. It was the recognition of a politicization of

humanitarian crises which has now become evident, of a clear

political use of those crises by the states and in particular of the

governments of the two superpowers of the cold war, of a

growing awareness of public opinion on the problems related to

genocide, massacres, international justice103.

Many of the contradictions of humanitarianism have been

exacerbated by the particular conditions of the present era. We

prefer to call it now globalization or the post-cold war era. The

most relevant and tragic - not only for the effects it has on the

victims but also for the dilemmas that lead to helpers - is that

humanitarian action can prolong the suffering it intends to

alleviate104.

The most resounding case of the last decade is that represented

by Rwanda, where aid to the victims-refugees in the refugee

camps has strengthened the power of the groups responsible for

the genocide. The only possible option for humanitarian

103 WHEELER N.J, Saving Strangers. Humanitarian Intervention in

International Society, Oxford, Oxford University Press, 2002, p. 74 e ss.

104 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione

umanitaria, Il Mulino, Bologna, 2003, p. 214 e ss.

81

agencies was to refuse or participate. For example, the choice of

Médecins sans Frontières to leave the field arose from the

refusal to endorse the negative consequences of aid based on

the best intentions. This was a choice that was not shared by

other agencies that remained in Rwanda to honor the ethical

goal of helping anyone in need105.

The help in some cases can become part of the mechanisms of

oppression and violence that have been at the origin of the

humanitarian crisis. This occurred not only in the case of

Rwanda was not true only in the case of Rwanda or Cambodia.

This phenomenon has been realized in a direct or indirect way

to favour the war economy, the creation of illegal trafficking,

enrichment, strengthening of power by groups involved in

conflicts as happened in the former Yugoslavia and in Somalia,

in Liberia or in Congo , in Sudan or Sierra Leone106.

We cannot get out of these dilemmas and problems with

ideological options or principles (both ethical and political) that

should always be valid and that are repeated identical even in

different situations. This is perhaps the most macroscopic limit

of pacifist movements, to which thousands of humanitarian

105 It is on the occasion of the Nigerian crisis for Biafra that Bernard Kouchner,

Patrick Aeberhard, Max Recamier and other doctors recruited by the Red

Cross take their distance from the neutralist politics of this organization and

hypothesize the creation of a new humanitarian organization that will be

founded in 1971: Médecins sans frontières

106 BECKER D, You Better Be Good. Review of David Rieff, «Trn-Newsletter 2»,

Hamburg Institute for Social research, May 2003, URL

TraumaResearch.net/fr_beck.htm.

82

activists belong, who are instead forced to think about these

dilemmas. It is therefore necessary to frame humanitarianism in

a context of criticism in the political and propagandistic use of

human rights by Western governments and states and

supranational organizations in which the Western powers play a

hegemonic role. Moreover, many humanitarian agencies have

either become or are becoming pawns for current war games or

are increasingly dependent on the needs of the image and the

choices of their main donors and sponsors107.

2.3 The Responsibility to Protect

The R2P principle could be interpreted as another name for

humanitarian intervention. In fact, the R2P doctrine is

different to humanitarian intervention108. As Evans (2008)

points out: “The biggest misunderstanding about R2P was

the belief that R2P is just another name for humanitarian

intervention109: undoubtedly, one can claim that

107 COLOMBO A., I nodi politici dell’ingerenza umanitaria, «Quaderni di Relazioni

Internazionali», 15 (2011, p. 163 e ss.)

108 Dayvid Chandle, Unraveling the Paradox of the Responsibility to Protect (Irish Studies in

International Af- fairs, Department of Politics and International Relations, University of

Westminster,London 2011).

109 Gareth Evans, Responsibility to protect: ending mass atrocity crimes once for all (Washington

DC, Brookings Institution 2008) 56

83

humanitarian intervention paved the way for the

emergence of the R2P doctrine. While humanitarian

intervention is about military response, “responsibility to

protect is much more nuanced, much more multi-

dimensional.”

The concept of "responsibility to protect" (RdP) stems

from the tragedies in Rwanda and the Balkans in the 1990s

following which the international community began to

debate how to react effectively when the human rights of

citizens of a state are systematically violated110.

Former Australian Minister of Foreign Affairs, Evans put

it as follows:

“The first thing about R2P is that it involves a

presentational shift from the language of the right to

intervene to the language of responsibility to protect, so

you no longer talk about the right of the big guys or

anyone else to throw their weight around but the

responsibility of everyone to prevent these atrocities

occurring, you talk not in terms of intervention as the key

idea but protection, so you shift the paradigm, the way of

looking at this away from the interveners to the victims,

those who suffer death, rape, displacement, violence,

110 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione umanitaria, Il

Mulino, Bologna, 2003, p. 214 e ss.

84

horror in these situations. 111” Two important

commissions were established which repeated the need to

cover a clear legal position on the question of humanitarian

intervention. The Kosovo Commission, led by Richard

Goldstone, concluded somewhat confusedly (from an

international legal perspective), stating that NATO's

intervention in Kosovo was "an illegal but legitimate

commission112".

The International Commission on Interventions and State

Sovereignty (ICISS), chaired by Gareth Evans and

Mohamed Sahnoun stated that, due to a "political reality"

issue, it would be impossible to find consensus on any

series of military intervention proposals that recognize the

validity of interventions not authorized by the Security

Council or the General Assembly:

“But that may still leave circumstances when the Security

Council fails to discharge what this Commission would

regard as its responsibility to protect, in a conscience-

shocking situation crying out for action. It is a real

question in these circumstances where lies the most harm:

in the damage to international order if the Security

Council is bypassed or in the damage to that order if

111 Gareth Evans, Responsibility to protect: ending mass atrocity crimes once for all (Washington

DC, Brookings Institution 2008) 56

112 Independent International Commission on Kosovo, The Kosovo Report (OUP 2000) 4

85

human beings are slaughtered while the Security Council

stands by 113.” The report of the International Commission

on Intervention and State Sovereignty (ICISS) of

December 2001 represents the most comprehensive and

complete attempt to regulate in a scientific manner what

has just been described on the responsibility of States to

guarantee the safety of their citizens. In fact, the starting

point is the identification of a series of remedies, including

military intervention, to avoid human rights violations

within contexts especially of war where state authorities

are critically ineffective. The report was created to find a

positive solution - legally acceptable and compatible with

state sovereignty114 - to the traditional problem of

humanitarian intervention. Key elements of the ICISS

report, The Responsibility to Protect, were adopted by the

United Nations at a summit on the 2005 General Assembly

resolution, which acknowledged that a state that shows

reluctance or inability to protect its population from

genocide, crimes of war, ethnic groups purification or

crimes against humanity can give rise to an international

responsibility to protect '. However, this was limited to

peaceful means, except in extreme circumstances where

113 International Commission on Intervention and State Sovereignty (n 2) 54-55

114 We are referring more precisely to the question posed by the then UN Secretary-

General Kofi Annan, who asked ‘if humanitarian intervention is, indeed, an

unacceptable assault on sovereignty, how should we respond to a Rwanda, to a

Srebrenica – to gross and systematic violations of human rights that affect every

precept of our common humanity. FOCARELLI C., The Responsibility to Protect

Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working

Doctrine, Journal of Conflict & Security Law C Oxford University Press 2008, p. 191

e ss.

86

the Security Council could invoke the provisions of

Chapter VII of the Charter of the United Nations. The

ICISS determined three situations in which the external

responsibility of the states comes into play:

• “When a particular state is clearly either unwilling or

unable to fulfill its responsibility to protect”

;

• “When a particular state... is itself the actual perpetrator

of crimes or atrocities” or

• “Where people living outside a particular state are

directly threatened by actions taking place there 115.”

Members agree to act:

Responsibility to protect populations from genocide, war

crimes, ethnic cleansing and crimes against humanity .

138. Each individual State has the responsibility to protect

its populations from genocide, war crimes, ethnic

cleansing and crimes against humanity. This responsibility

entails the prevention of such crimes, including their

incitement, through appropriate and necessary means. We

accept that responsibility and will act in accordance with

115 Report of the International Commission on Intervention and State Sovereignty’ (2001)

International Devel- opment Research Centre Ottawa 10

87

it. The international community should, as appropriate,

encourage and help States to exercise this responsibility

and support the United Nations in establishing an early

warning capability

139. The international community, through the United

Nations, also has the responsibility to use appropriate

diplomatic, humanitarian and other peaceful means, in

accordance with Chapters VI and VIII of the Charter, to

help to protect populations from genocide, war crimes,

ethnic cleansing and crimes against humanity. In this

context, we are prepared to take collective action, in a

timely and decisive manner, through the Security Council,

in accordance with the Charter, including Chapter VII, on

a case-by-case basis and in cooperation with relevant

regional organizations as appropriate, should peaceful

means be inadequate and national authorities are

manifestly failing to protect their populations from

genocide, war crimes, ethnic cleansing and crimes against

humanity. We stress the need for the General Assembly to

continue consideration of the responsibility to protect

populations from genocide, war crimes, ethnic cleansing

and crimes against humanity and its implications, bearing

in mind the principles of the Charter and international

law. We also intend to commit ourselves, as necessary and

appropriate, to helping States build capacity to protect

88

their populations from genocide, war crimes, ethnic

cleansing and crimes against humanity and to assisting

those which are under stress before crises and conflicts

break out116 .

The essential content of the Report was incorporated in the

final document of the World Summit in October 2005,

approved with Resolution 60/1 of the UN General

Assembly and the same principles were then taken up by

the Resolutions of the Security Council 1674 and 1706 of

the 2006. The Report and the UN resolution remained

silent on what happens if the Council disagrees.

Subsequently the proponents of the doctrine did everything

to emphasize that the use of force is only one aspect of

R2P 117.In the final document, R2P incorporates the

responsibility to prevent, react and rebuild. The language

that is usually invoked is based on pillars: protection by the

state (first pillar), assistance in prevention by the

international community (Pillar 2) and intervention by the

Security Council (Pillar 3) 118. Given the role attributed to

the Council from the final document of the world summit,

the extent to which that body itself embraced the language

of R2P was generally considered fundamental to measure

116 2005 World Summit Outcome Document, UN Doc A/RES/60/1 (2005), paras. 138-139.

117 Luke Glanville, 'The Responsibility to Protect Beyond Borders in the Law of Nature and

Nations' (2018) 28 European J Int'l L 1069.

118 Report of the Secretary-General, ‘Implementing the Responsibility to Protect’ (2009) UN

Doc A/63/677

89

its impact 119.The commission put forward the following

precautionary principles to address the legality of

intervention:

Right intention: The primary purpose of the intervention

must be to halt or avert human suffering

Last resort: Military intervention can only be justified

when every non-military option for the prevention or

peaceful resolution of the crisis has been explored

Proportional means: The scale, duration and intensity of

the planned military intervention should be the minimum

necessary to secure the defined human protection

objective. Reasonable prospects: There must be a

reasonable chance of success.”

2.4 How Does the Principle of R2P Work?

Initial progress has been slow. After mentioning R2P in

the passage in Resolution 1653 (2006) on the Great Lakes

Region, 120 the text of the World Summit was explicitly

reiterated by Security Council in Resolution 1674 (2006)

on the protection of civilians in armed conflicts: this was a

further diplomatic agreement on the theory of R2P rather

119 Andreas S Kolb, The UN Security Council Members' Responsibility to Protect: A Legal

Analysis (Springer 2018)

120 UNSC Res 1653 (27 January 2006) UN Doc S/RES/1653, para 10 (the Council

‘Underscores that the

governments in the region have a primary responsibility to protect their populations’).

90

than its application in practice. The subsequent approval

by the Council for the next five years was limited to the

preamble to the R2P in the resolutions concerning Darfur

in 2006121 and then a series of resolutions in 2011 on Côte

d’Ivoire 122, South Sudan 123, Yemen124, and Libya 125. It

was in Libya that R2P actually moved from the preamble

to operational sections, when the Council "underlines the

responsibility of the Libyan authorities for the protection

of its population”, including foreign citizens and African

migrants 126. It was probably in Libya, that the invocation

of R2P actually moved from theory to practice. In Libya,

as mentioned above, R2P was included in the Council

resolutions both in the preamble and in operational actions.

The willingness of the Council to act was driven in part ,by

the clear way in which the government of Muammar

Gaddafi threatened a large number of civilians and the

unanimity of the international “opprobrium” it attracted,

especially including the Arab League, African Union and

Organization of the Islamic Conference, condemnation by

which it was cited in each of the key resolutions.

Resolution 1973 (2011) in particular , authorized Member

States to use all necessary means - for example, to use

121 UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706.

122 UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975

123 UNSC Res 1996 (8 July 2011) UN Doc S/RES/1996

124 UNSC Res 2014 (21 October 2011) UN Doc S/RES/2014

125 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970; UNSC Res 1973 (17 March 2011)

UN Doc S/RES/1973.

126 UNSC Res 2016 (27 October 2011) UN Doc S/RES/2016

91

force - "to protect civilians and civil populated areas”.127A

similar dynamic was evident in Côte d’Ivoire . Discussed

in Council less than two weeks after the Libyan

authorization, the resolution of 1975 (2011) unanimously

reiterated that it was the responsibility of the Côte d’Ivoire

for the protection of civilians, but also recalled its

authorization for the United Nations operation in Côte

d’Ivoire (UNOCI) "to use all the means necessary to fulfill

his mandate ,protect civilians under the imminent threat of

physical violence, according to their abilities and their

own deployment areas” 128.

Alex Bellamy concludes that these resolutions, adopted

with some abstentions but without negative or contrary

votes, have clearly demonstrated the Council's

determination to act under its responsibility to protect the

populations, even through the use of force when necessary

and possible. They have marked a new phase in the history

of the Council from which there could be no return 129. The

general secretary stated in his assessment :

“In 2011, history took a turn for the better. The

responsibility to protect came of age; the principle was

127 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, para 4.

128 UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975, para 6 (echoing language in UNSC Res

1528 (27 February 2004) UN Doc S/RES/1528, para 6(i).

129 Alex J Bellamy, The Responsibility to Protect: Towards a “Living Reality” (London: United

Nations

Association-UK, 2013) available at

<http://www.una.org.uk/sites/default/files/The%20Responsibility%20to%20Protect%20Towards%2

0a%20Li ving%20Reality%20-%20Professor%20Alex%20Bellamy.pdf>, 19.

92

tested as never before. The results were uneven, but at the

end of the day, tens of thousands of lives were saved. We

gave hope to people long oppressed. In Libya, Côte

d’Ivoire, South Sudan, Yemen and Syria, by our words and

actions, we demonstrated that human protection is a

defining purpose of t he United Nations in the twenty-first

century”130

However a closer reading offers a more skeptical

interpretation. In both resolutions and statements of

representatives, the emphasis is clearly on the

responsibility of the state in question to protect its

population. No reference is made, in particular, to the

residual responsibility of the international community

when the state fails, for whatever reason to act. Resolution

1970 (2011) pointed out that it was the "responsibility of

the Libyan authorities" to protect its population ";

Resolution 1973 (2011) reaffirmed this responsibility and

reaffirmed that "The parties in armed conflict have the

primary responsibility to take all possible measures to

guarantee the protection of civilians ". Similarly, the

resolution 1975 (2011) on the Ivory Coast – though

reiterated the limited mandate to protect civilians - it

simply reaffirmed the "primary" responsibility of each

130 Ban Ki-moon, United Nations Secretary General, address to the Stanley Foundation Conference

on the Responsibility to Protect, New York (18 January 2012).

93

state to protect civilians ". In the language of the pillars,

the emphasis was clearly on the first pillar (protection) and

perhaps second pillar (prevention), with the third pillar

(intervention) silent in the background 131. Some, thought

that Libya had gone far beyond the simple protection of

civilians. Libya, therefore, seems to be the example and

therefore illustrate that R2P can provide a support

language when a state or a group of states, is willing to

take action against a common enemy. Normally, there is

nothing new here: Council authorizations in the case of

Libya have followed models developed and already seen

during the 1990s. Indeed, Michael Doyle has argued that

R2P should legitimize both such actions and de-legitimize

those of exploitation or selfishness, acting as a "license for

and on a leash against forced intervention132” .A better

test is whether R2P encouraged action even when the well

of political will was dry. Here, the example of Syria offers

a depressing counterpoint . Since then , the theory of

responsibility to protect has been discussed in theory and

practice133, with positions ranging from acceptance to

rejection or relative indifference as a political catchword .

131 Gareth Evans, 'The Evolution of the Responsibility to Protect: From Concept and Principle to

Actionable Norm' in Ramesh Thakur and William Maley (eds), Theorising the Responsibility to

Protect (CUP 2015) 32-34 (describing this period as R2P’s ‘mid-life crisis’). On the history of UN

commitments to protect civilians, including in more traditional peacekeeping operations, see Mats

Berdal, 'United Nations Peacekeeping and the Responsibility to Protect' in Ramesh Thakur and

William Maley (eds), Theorising the Responsibility to Protect (CUP 2015).

132 Michael W Doyle, The Question of Intervention: John Stuart Mill and the Responsibility to

Protect (Yale University Press 2015) 110.

133 SAECHAO, Natural Disasters and the Responsibility to Protect: From Chaos to Clarity, in

Brooklyn Journal of Int. Law, 2007, pp. 663-707

94

The contrast between defenders and critics is attenuated in

the idea that the responsibility to protect is the subject of

an "emerging norm" of international law. In this case we

speak of a norm that is placed in a limbo halfway between

existence and non-existence. The theory of the

responsibility to protect was born precisely to try to give

an "external" impulse, justified by humanitarian reasons, to

the "natural" reluctance of states to see their sovereignty

limited. To this , is added the difficulty in allowing

military interventions by other States within their territory ,

on the basis of assessments that can easily mask, behind

humanitarian reasons, ideological, if not imperialist,

motivations. Expecting therefore a consensus from the

States to a limitation of their sovereignty, while meanwhile

the massacres take place without being able to intervene,

appears morally not tolerable134. What emerges from the

analysis of the report is a new concept of sovereignty.

Sovereignty must be considered as a concept capable of

giving way to a further principle, that of sovereignty. The

last one is a form of responsibility, both external and

internal (towards the citizens) and arises from the contrast

134 Klein, The Duty to Protect and to Ensure Human Rights, Berlin, 2000; Gross, Thwarting

Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defense:

Human Rights Versus the State's Duty to Protect its Citizen, in Temple Int. and Comp. Law

Journal, 2001, II, p. 198 e ss.

95

that exists between the increasing impact of international

human rights standards and the concept of human safety135.

The same Kofi Annan highlights, in the aforementioned

report, the tension between two fundamental principles of

international law: the protection of human rights and the

principle of sovereignty related to the rule of non-

interference in internal affairs. On the one hand, therefore,

the rights of individuals and on the other the right to

preserve their territorial jurisdiction from external

interference. The two norms are in conflict, so Kofi Annan

asks himself which of the two should prevail in extreme

situations where serious crimes against humanity are

committed. From a strictly juridical and even rational point

of view the "responsibility to protect", an "emerging norm"

impregnated in the culture of human rights, clashes with a

"consolidated norm" found in the same Charter of the

United Nations, according to which "none provision of this

Statute authorizes the United Nations to intervene in

matters that essentially belong to the internal competence

of a State “.

The 2001 report addresses the question of possible

remedies suitable for avoiding massacres resulting from

civil wars, insurrections, acts of state repression and the

collapse of state institutions by changing the nominal label

135 FOCARELLI C., The Responsibility to Protect Doctrine and Humanitarian

Intervention: Too Many Ambiguities for a Working Doctrine, Journal of Conflict &

Security Law Oxford University Press 2008, p. 191 e ss.

96

of the problem. All this, poses the problem in terms of

"responsibility to protect" rather than a humanitarian "right

to intervene". According to the Commission, in fact, "the

language of past debates arguing for or against" right to

intervene by one state on the territory of another state is

outdated and unhelpful. The central idea of the report is

that in today's globalized world sovereignty understood as

"control" typical of the c.d. "Westphalian system" - must

give way to sovereignty understood as "responsibility"

internally and externally and that is not only towards other

States but also towards its own citizens136. The contrast

between "control" and "responsibility", to be honest, is not

entirely clear, nor does it appear coherent within the

relationship. It could in fact be objected that it is thanks to

the "control" that a State manages to be "responsible".

Moreover, the multi-point report underlines how

sovereignty (precisely as control) is still necessary and is,

among other things, precisely to respect and enforce

human rights137. The new concept of sovereignty,

understood more as a responsibility than a control, gives

rise to three individual duties of States and of the

136 FOCARELLI C., The Responsibility to Protect Doctrine and Humanitarian

Intervention: Too Many Ambiguities for a Working Doctrine, Journal of Conflict &

Security Law C Oxford University Press 2008, p. 191 e ss.

137 For example, the Commission points out that "sovereignty does still matter" as

"effective and legitimate states remain the best way" and that "sovereignty does still

matter" to ensure that the benefits of internationalization of trade, investment,

technology and communication will be equitably shared "and" to cohesive and

peaceful international system is more likely to be achieved through cooperation of

effective states, in an environment of fragile, collapsed, fragmented or generally

chaotic state entities ".

97

International Community: the duty to prevent

(responsibility to prevent), the duty to react (responsibility

to react) and the duty to rebuild (responsibility to

rebuild)138. This broader definition regarding the problem

of humanitarian intervention justifies, among other things,

in the Commission's opinion, the terminological shift from

the traditional "right of intervention" to the new

"responsibility to protect". The duty of prevention should

primarily fall to the State on whose territory human rights

violations occur. Only when the State is not able to carry

out the duty of prevention would there be a duty to react of

the international community that could take (indeed

preferably should) peaceful forms, from the early warning

mechanisms to development aid up to sanctions, but it can

materialize also in the military intervention. Finally, at the

end of the conflict, the international community would

have the duty to rebuild a lasting peace and the political-

institutional structures - with regard to security, justice and

reconciliation, development - of the State or territory in

which the intervention had place139. In this direction, the

high-level panel for high-risk threats, challenges and

change, set up by the Secretary General Kofi Annan, was

adopted, approving in 2004 the emerging standard of

138 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione

umanitaria, Il Mulino, Bologna, 2003, p. 214 e ss.

139 CHANDLER D, From Kosovo to Kabul. Human Rights and International

Intervention, London, Pluto Press, 2002, p. 36 e ss.

98

responsibility to protect (RdP). The Panel believes that

there is a collective international responsibility, exercisable

by the Security Council, which would lead to authorize

military intervention, understood as a last resort, in the

event that genocide, ethnic cleansing and serious violations

of human rights are committed. In September 2005 - on the

occasion of the United Nations world summit - all

representatives of the Member States formally endorse the

concept that each country should be held responsible for

protecting its citizens from genocide, ethnic cleansing and

war crimes. Based on the final document of the 2005

Summit, Secretary General Ban Ki-moon, in a report and

recommendation to the General Assembly drawn up in

2009140, determined that each state is given the primary

responsibility for protecting its population from genocide,

crimes of war, crimes against humanity and ethnic

cleansing, as well as incitement to these crimes and the

international community must assist states in this function.

The international community is then given the opportunity

to go and use appropriate humanitarian and other

diplomatic means to protect people from these crimes. If a

state fails "manifestly" in the duty to protect its citizens

because "it cannot or does not want to", the international

community must be willing to take collective action to

140 BAN KI-MOON, Implementing Responsibility to Protect. Report of the Secretary

General, 12 January 2009.

99

protect them, in accordance with the provisions contained

in Chapter VII and VIII of the UN Charter.

2.5 The Road to R2P in Practice

History has witnessed a succession of brutal conflicts.

Over time, the international community has become

increasingly aware of the serious violations of human

rights and the concern that plagues the world scene. Since

the mid-19th century, various phenomena , such as the

first Geneva Convention of 1864, the founding of the Red

Cross in 1863 and the creation of the League of Nations

have made the international community aware of the need

for a "sort of collective consciousness about atrocities"

141. During the Cold War, there were numerous

humanitarian interventions, even if driven by economic

and strategic motivations; for example the interventions

of Belgium in Congo in 1960, of the United States in the

Dominican Republic and of Granada and Panama in

1965, 1983 and 1989 . The end of the cold war

represented a turning point and created an opportunity for

humanitarian interventions: the 1990s saw a series of

141 Taylor B. Seybolt, Humanitarian Military Intervention: The Conditions for Success and failure

(Oxford Univer- sity Press 2007).

100

man-made disasters around the world and there was a

noticeable increase in the number of humanitarian

interventions authorized by the UN Security Council. The

United Nations Security Council has begun to consider

internal conflicts and serious human rights violations as

threats to international peace and security under Article

39 142. The United Nations collective security system has

attempted to provide a adequate answer. During the

1990s, numerous military operations were launched and

the UN Security Council provided humanitarian

justifications to each of them 143. Evans (2008) divides

these interventions into four categories: “these were

clearly contrary to the wishes of the government

concerned as northern Iraq, Bosnia and Rwanda, were in

a situation where the consent had no bearing on the

intervention such as Somalia, were a contentious issue

like Haiti, Liberia and Sierra Leone or were confusing

such as Timor-Leste” . The interventions, which followed

one another during the 1990s, were often unfinished and

self-defeating. For example, in Somalia, the international

142 Paul D. Wiliams and Meghan Stewart, ‘Humanitarian Interventions: An idea whose times has

come and gone’, in W. Van Genugten, M.Scharf and S. Radhin, (ed) Criminal jurisdiction 100 years

after the 1907 (2009) Hague Peace Conference, The Hague T.M.C. Asser Press, 227.

143 Patrick F.White, ‘Normative Considerations bearing on the Responsibility to protect- Prospects

and Implica- tions in a Fracturing International System’ (2008) Canadian Military Journal, 16

101

community organized a military operation after numerous

civilians had already been killed 144. In the Balkans, the

international community has lost the possibility of

avoiding several mass murders, and despite UN

peacekeepers in Bosnia in 1992, thousands of Bosnians

were killed. In Rwanda, UN peacekeepers withdrew

while the genocide had already begun. Another

catastrophe, which proved to be a challenge to the R2P

principle, was the conflict in Darfur in 2003. The conflict

caused the death of about 200,000 civilians and the

international community failed miserably in facing this

challenge145.

2.6 The Rwanda Genocide, 1994 :Challenges and

Implications of Responsibility to Protect

One of the most emblematic and discussed cases is that of the

genocide in Rwanda. The population of Rwanda is divided

into three ethnic groups: Hutu (about 85%), Tutsi (14%) and

144 Alan J. Kuperman, ‘Rethinking the Responsibility to Protect’ (2009) The Whitehead Journal of

Diplomacy and International Relations, 20.available at

http://blogs.shu.edu/diplomacy/files/archives/Kuperman%20-

%20Rethinking%20the%20Responsibility%20to%20Protect.pdf accessed on 15 May 2004.

145 Gareth Evans, ‘From humanitarian intervention to the responsibility to protect’ (2006) 24

Wisconsin Interna- tional Law Journal, No. 3, 705-706

102

Twa (1%). Historically, the Tutsis occupied the upper strata

and the Hutus the lower strata. The hostility between these

two ethnic groups increased under the German and then

Belgian colonial rule, culminating with the overthrow of the

Tutsi domination by the Hutus. A new wave of tension and

ethnic conflicts continues after Rwanda's independence in

1962146. To regain the previous positions, Tutsi refugees in

neighboring countries have begun to launch attacks on the

Hutu government: this has caused the death of a significant

number of Tutsi and caused a large influx of refugees. The

Patriotic Front of Rwanda (RPF), composed mainly of Tutsi

exiles in Ugania, organized an attack on Rwanda causing the

outbreak of a civil war. The war lasted for about three years

during which "an aggressive and exclusive Hutu solidarity

was knowingly forged in opposition to these despised Tutsi

outsiders? 147" Through the attempts of some countries in the

region and the Organization for African Unity, the Agusha

Peace Agreement was signed by the RPF and the Hutu

government in August 1993. In October 1993, the Security

Council established the mission of UN assistance to Rwanda

(UNAMIR) "which was a force of 2,500 people to monitor the

146 Lukin Robinson, ‘The Tragedy of Rwanda’ (December 2003) 55 Monthly Review Foundation,

Issue 07, 52-54

147 Organization of African Union, ‘Rwanda: The Preventable Genocide, African Union’ available

at: www.refworld.org/docid/4d1da8752 accessed on: 12 March, 2014

103

ceasefire and contribute to the security of the capital,

Kigali.148" The deaths of the presidents of Rwanda and

Burundi in an air disaster on 6 April 1994 resulted in several

weeks of massacres. The Rwandan Hutu army, paramilitary

groups and militia carried out a brutal mass murder with the

aim of eliminating all Tutsis and opposition members. Within

100 days it is estimated that 1 million men, women and

children have lost their lives. In addition, another 1.5 million

inhabitants of Rwanda had been displaced. Verwimp (2004)

writes about the death toll: "In just 3 months, over 10% of the

general population and about 75% of the Tutsi minority

population have been killed." 149 Despite the international

community's awareness 150on the murder in Rwanda, "the

weeks have been wasted in determining whether the murder

has fully met the rigorous legal definition of genocide." The

international community and the United Nations have

postponed a long time reaction to ethnic cleansing, due to the

148 Holly burkhalter, ‘A preventable horror?’ (1994) Africa Report, 39.6, 17.

149 Philip Verwimp, ‘Death and survival during the 1994 Genocide Rwanda’ (2004) 2 population

Studies 58, 233

150 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide obliges “all

states to pre- vent or punish acts of genocide.”

104

opposition of some P5s, in particular the United States 151.

Inexplicably, UNAMIR, which was in Kigali during the mass

murder, was forbidden to intervene. Numerous countries like

Canada, Argentina, Spain and New Zealand have requested a

peacekeeping operation with a much stronger mandate and

"new rules of engagement to protect innocent civilians",

which was rejected by Boutros Ghali, then secretary general of

the United Nations 152. In April, with resolution 912, the UN

Security Council voted to reduce the number of UNAMIR

peacekeepers to 270 members. On 7 April Belgium withdrew

its 440 troops from UNAMIR 153. It must not be forgotten that

the victims of some countries in Somalia like the United

States have had a significant impact on the lack of will of the

international community and of the United Nations system to

intervene in Rwanda. With the progressive worsening of the

situation, on 17 May the United Nations Security Council

adopted Resolution 918 which authorized the strengthening of

UNAMIR and approved a military intervention with French

151 Douglas G. Anglin, ‘Rwanda: the preventable genocide, The Report of the International Panel of

Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events’

(2001) 56International Journal 149.

152 Milton Leitenberg, Rwanda, 1994: International incompetence produces genocide (Peacekeeping

and inter- national Relations 23 1994) 6

153 Samantha Power, A Problem From Hell, America and the Age of Genocide (Basic Books

2013)343.

105

leadership known as Operation Turquoise, which would set up

neutral protection zones 154 . The genocide ended on 18 July

1994 when the Rwandan rebel army (RPA) violated the

ceasefire agreement and eventually defeated the Rwandan

army. Over one million Hutu refugees have fled to Zaire and

Tanzania155. The international community has now begun to

play an important role in the effort to recover aid in Rwanda

through the implementation of a socio-economic program. The

new Rwandan government received aid worth 4 billion dollars

between 1994 and 2000. The "lack of strategic and national

interests of the P5", the "slowness of the bureaucratic

performance of the United Nations" and the "lack of political

will" were addressed by the international community and by

the United Nations on the intervention. The apologies of

Presidents Sarkozy, Bill Clinton and Kofi Annan to Rwanda

for their inactions are a testament to their mistakes156 . Kofi

Annan, UN Secretary-General, gave a speech to the Human

Rights Commission during a special meeting to celebrate the

154 Turquoise res 929 22 jun 1994, See: A. Wallis, Silent Accomplice: “The Untold Story of France’s

Role in the Rwanda Genocide”, London: I.B. Tauris, 128 (2006).

155 Taylor.B. Seybolt, Humanitarian Military intervention, The Condition for success and failure

(Oxford Universi- ty Press 2008) 72

156 Linda Melvern, A people Betrayed: The role of the West in Rwanda’s Genocide (London, Zed

Books 2009).

106

international day of reflection on genocide in Rwanda of 1994

on behalf of the United Nations in Geneva as follows:

"First of all, we must all acknowledge our responsibility for

not having done more to prevent or stop the genocide. Neither

the United Nations Secretariat, nor the Security Council, nor

the Member States in general, nor the international media,

paid sufficient attention to the signs of disaster that were

collecting. Even less we have taken timely action .... 157"

Subsequently numerous scholars acknowledged that "a timely

intervention could have stopped the genocide". Among these,

Matloff and Dorn concluded as follows:

"The genocide in Rwanda could certainly have been predicted

and perhaps could have been prevented. At the very least, it

could have been strongly mitigated by the United Nations.

This conclusion takes into account the information and

resources available to the United Nations, its mandate and its

potential capacity and previously demonstrated to adapt to the

difficult situation. The UN peacekeeping mission would

undoubtedly have expanded its activities and efforts

(diplomatic, humanitarian and military) at an early stage,

given the clear warnings available to it. What was missing

was the political will, in the Secretariat and in the Security

157 www.un.org/events/Rwanda

107

Council, to make courageous decisions and to develop the

means to create new information and preventive measures.

The lesson of Rwanda is clear: we must build the international

political will, as well as a strengthened capacity of the United

Nations, for prevention ... 158"

The United Nations and the international community have so

to speak" turned a blind eye " on the bloody genocide in

Rwanda, and their failure later admitted. The function and

application of humanitarian intervention have been shown to

have serious shortcomings in the case of Rwanda. The

genocide in Rwanda has broken the growing hopes that the

doctrine of humanitarian intervention can effectively stop the

grave violation of human rights. In 2014, in celebration of the

20th anniversary of the genocide, a New York Times editorial

greeted the country as "an island of order and relative

prosperity in a poor and politically unstable region". But,

listing a series of restrictions on civil and political rights,

including detentions and torture, disappearances and killings,

the article then concluded: "Tackling the poisonous legacies of

the genocide in Rwanda is the only way to avoid the future

tragedy and it's the best way to honor Rwanda who died. "

158 Walter Dorn and Jonathan Matloff, ‘Preventive the Bloodbath: Could the UN have predicted and

prevented the Rwanda genocide?’ (2000) 1 Journal of Conflict Studies 20.

108

2.7 The Responsibility to Protect in the Libyan Intervention: Ultimate

Success or International Failure?

The protests of the Arab spring that occurred in Tunisia and

Egypt, broke out in Libya on February 15, 2011. The uprising

began in a peaceful manner and later turned into a violent one

due to the brutal response of the Gaddafi regime. Many

officers joined the opposition and the "provisional transitional

national council" was established. In a very short time the

revolt turned into a real civil war with the aim of ousting the

Gaddafi regime. Bellamy and Williams (2011) on the human

rights threats made by Gaddafi against the opposition:

"In words that brought direct echoes of the genocide in

Rwanda in 1994, Gaddafi told the world that" the officers

have been deployed in all the tribes and regions so that they

can purify all decisions from these cockroaches and that the

Libyans who arm themselves against Libya will be executed "

159.

In response to the very rapid disintegration of the Libyan

landscape, various regional and sub-regional organizations

together with the United Nations condemned the serious

violations of human rights in Libya and began to lay the

159 Alex J. Bellamy and Paul Williams, ‘The new politics of protection-Cote d’Ivoire, Libya and the

Responsibility to Protect’ (2011) International Affairs 87 (4), 829-831.

109

foundations for future interventions160. For example, on

February 22, 2011, the UN High Commission on Human

Rights "urged the authorities to stop using violence against

protesters, which could amount to crimes against humanity"161

. On 22 February, UN officials announced that the situation in

Libya was an imminent and concrete case of R2P. Ban Ki-

Moon special adviser on genocide prevention said:

"The regime's behavior could amount to crimes against

humanity and insisted on respecting the 2005 commitment to

R2P 162." Similarly, the EU also condemned human rights

violations in Libya through the words of Catherine Ashton163.

Furthermore, the League of Arab States (LAS) , the

Organization of Islamic Countries (OIC) and the African

Union Peace and Security Council (AU) strongly condemned

the brutal repression of the opposition. The media played an

important role, spreading convincing evidence of serious

160 Spence Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 Melbourne

Journal of International Law.

161 Reuters, ‘Libya attacks may be crimes against humanity: UN’, (22 February 2011)

162 UN Press Release, “Statement by the UN Secretary General Special Adviser on the Prevention of

Genocide” (New York, 22 Feb 2011).

163 Declaration by the High Representative, Cathrine Ashton, on behalf of the European Union on

events in Lib- ya, Council of the European Union, 20 Feb 2011, EU Doc 6795/1/11-PRESSE 3

110

human rights violations: in response to atrocities, the global

community accused the Gaddafi regime of crimes against

humanity. On February 25, 1964, the United Nations Security

Council adopted resolution S-15/1 and called on the Libyan

regime to "take responsibility for protecting its population and

immediately end all human rights violations". The Human

Rights Council opened a special session on the "human rights

situation in the Libyan Arab Jamahiriya" and approved a

resolution calling on Libyan officials to stop the further

bloodshed course164. With the increase in violence and

brutality committed, the supervisory committee unanimously

approved the 1970 resolution and expressed deep concern

about the situation in Libya and believes that "widespread and

systematic attacks ... against the civilian population can

equate to crimes against humanity " 165. The resolution

established the responsibility of the Libyan official to protect

his population, as well as the imposition of an arms embargo

on Libya and sanctions aimed at the Libyan administration

and the Gaddafi family 166. The supervisory committee also

164 65. OHCHR, Press Release, Geneva, (18 Feb 2011).

165 UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970

(2011)

166 he Resolution was welcomed by the SC members, although Russia, China and Brazil did not

provide backup in practice. See: Alex Bellamy and Paul Williams, ‘The new Politics of Protection?

Côte d'Ivoire, Libya and the responsibility to protect’ (2011) International Affairs 87:4, 838-841

111

showed the situation in Libya to the ICC to send a clear and

strong message to Gaddafi 167.

As a result, the International Criminal Court initiated a

proceeding according to which the Gaddafi regime was guilty

of crimes. However, all the responses and diplomatic efforts

by the global community have not allayed Gaddafi's behavior.

Gaddafi's forces continued to bomb the rebels and the

humanitarian crisis was worsening 168. On 12 March 2011, in

an unprecedented move, the Gulf Cooperation Council invited

the Supervisory Committee to "take all necessary measures to

protect civilians, including the application of a non-flying

area on Libya " 169. In the end, the attempts of the global

community began to bear fruit and the United Nations

167 his power was used to refer the situation in Darfur to the ICC by the SC for the first time. On 27

June 2011 ICC issued an arrest warrants for Libya leader Gaddafi, his son and head of intelligence

for alleged crimes against humanity, available at: http://www.icc-

cpi.int/iccdocs/doc/doc1099329.pdf. See also: Amnesty Interna- tional, ‘ICC Issues Arrest Warrant

for Al-Gaddafi’ (27 June 2011) available at: http://www.refworld.org/docid/4e09b8512.html, Radio

Free Europe/Radio Liberty, ‘ICC issues arrest warrant for Qaddafi on war crimes charges’, Tripoli

rejects accusations, (27 June 2011) available at: http://www.refworld.org/docid/4e0b2e4321.html.

168 Matthias Dembinski and Theresa Reinold, ‘Libya and the Future of the Responsibility to Protect –

African and European Perspectives’ (2012) Peace Research Institute Frankfurt (PRIF), Germany, 12-

14 available at:

http://www.hsfk.de/Newsdetail.25.0.html?tx_ttnews%5Btt_news%5D=985&tx_ttnews%5BbackPid

%5D=5&cHa sh=777fb174b0&L=1 accessed on 12 May 2014.

169 Resolution 7360 of the Council of the Arab League meeting at the Ministerial level, (12 March

2011).

112

Security Council followed up on Resolution 1973 170. Thus, on

March 17, Gaddafi declared that he would organize an attack

in Benghazi and threatened the rebels that "his troops would

not have shown pity and pity" 171.

Thus Gaddafi's speech proved to be a stimulus for the decision

of the United Kingdom, Lebanon, France and the United

States to put the draft resolution to a vote. Resolution 1973

was adopted with 10 votes in favor and five abstentions from

China, Brazil, Germany, Russia and India172. The supervisory

committee considered that the situation in Libya "continues to

pose a threat to international peace and security". Therefore,

according to Chapter VII of the Charter of the United Nations,

the supervisory committee has approved several measures

including the use of military force. In addition to this, the

1973 resolution also contains: the protection of civilians, the

creation of a non-flight zone, the freezing of assets, the

application of the arms embargo and the ban on flights. But

the most important part of the resolution is that it allows UN

170 UN Security Council, Security Council resolution 1973 (2011) [on the situation in the Libyan

Arab Jamahiri- ya], 17 March 2011, S/RES/1973(2011).

171 Maria Golovina and Patrick Worship, ‘UN Okays military action on Libya’ Reuters, (17 March

2011)

172 he UK, Lebanon, France, Bosnia and Herzegovina, Colombia, Gabon, Nigeria, Portugal, South

Africa and the U.S. voted in favour.

113

member states to "take all necessary measures ... to protect

civilians and civilian areas" of Libya. Initially, the air strike

campaign began on March 19 conducted by a coalition of

Western states supported by Qatar and the United Arab

Emirates. On March 24, "Operation Unified Protector" was

launched under the aegis of NATO. NATO declared that the

operation was limited to the application of Resolution 1973

and would end as soon as in Libya - a government had

satisfied the following requests: "a) Put an end to attacks

against populated civilian areas. b) Withdraw to the bases of

all military forces. c) Allow unlimited humanitarian access.

173"

2.8 To What Extent Was the NATO Intervention in Libya a

Humanitarian Intervention?

Despite these premises, there began to be the general

impression that NATO was not an impartial player. In fact, the

main NATO members have clarified their intention to oust the

Gaddafi regime. In an extraordinary jointly signed declaration,

Barak Obama, David Cameron and Nicolas Sarkozy

reaffirmed their commitments with Resolution 1973; however,

173 NATO Statement on Libya, following the working lunch of NATO Ministers of Foreign Affairs

with non- NATO contributors to Operation Unified Protector, (14 April 2011)

http://www.nato.int/cps/en/natolive/official_texts_72544.htm accessed on 20 June 2014.

114

he continued to argue that "it is possible to imagine a future

for Libya with Gaddafi in power" 174. Now, authorization to

use military force to protect Libyan citizens from atrocities

has been accepted by several Member States with open arms.

This agreement provides an indication of their acceptance of

the R2P doctrine. Numerous scholars consider the 1973

resolution a great success for the R2P principle. Secretary-

General Ban Ki-moon said: "Resolution 1973 clearly states

the international community’s determination to fulfil its

responsibility to protect civilians from violence perpetrated

upon them by their own government.175”

Former R2P Commissioner at the United Nations, Thakur

considered that Resolution 1973 is a concrete example of

military implementation of R2P and that the intervention in

Libya has played a fundamental role in the future of the R2P

doctrine. He also noted that "Resolution 1973 marks the first

military implementation of the doctrine of responsibility to

protect .... R2P is approaching solidification as a feasible

174 BBC NEWS, ‘Libya: Obama, Cameron and Sarkozy vow Gaddafi must go’(15 April 2011)

available at: http://www.bbc.co.uk/news/world-africa-13089758.

175 Statement by the Secretary-General on Libya, Department of Public Information, News and

Media Division (New York 17 March 2011), available at:

http://www.un.org/sg/statements/?nid=5145 accessed on 05 Novem- ber 2013.

115

norm"176. Indeed, those in favor of military intervention

considered the intervention in Libya as a concrete case of the

policy of Responsibility for protection adopted by the United

Nations at the 2005 world summit. According to the former

Australian Foreign Minister and the co-president of the ICISS,

Evans, "The international military intervention (SMH) in

Libya does not concern the bombing for democracy or the

head of Muammar Gaddafi. Legally, morally, politically and

militarily it has only one justification: to protect the people of

the country 177". However, the case of Libya as an example of

obvious R2P success and implementation of resolution 1973

has been impeached by many Member States. For example,

Brazil stated that: "The use of force in Libya has made it more

difficult to reach a political solution" 178. Furthermore,

resolution 1973 refers to R2P, but exclusively to its first pillar,

which is the responsibility of the State to protect its citizens,

176 Ramesh Thakur, ‘The Responsibility to Protect: Norms, Laws and the Use of Force in

International Politics’ (2011) Routledge, 173.

177 Gareth Evans, ‘UN targets Libya with pinpoint accuracy’,The Sydney Morning Herald (24 March

2011) availa- ble at: http://www.smh.com.au/federalpolitics/political-opinion/un-targets-libya-

withpinpointaccuracy 20110323-1c6pc.html accessed on 13 January 2014.

178 Kevin Boreham, ‘Libya and the Responsibility to Protect doctrine’ (28 August2011) Online

Opinion, Austral- ia’s e-journal of social and political debate, available at:

http://www.onlineopinion.com.au/view.asp?article=12522&page=0 accessed on 25 May 2014.

116

in its preamble179. Thus the expansion of the 1973 resolution

in the regime change has caused serious criticism. Critics

believe that the protection of civilians is the stated goal of

R2P, and that the removal of dictators is not. Therefore,

regime change in the case of Libya could have negative effects

on future attempts to invoke the R2P doctrine. As underlined

during the chapter, the ICISS, based on the "just war theory",

issued criteria that must be met before the intervention. First

of all there must be a just cause and there should be "a large-

scale loss of life ... which is the product of deliberate state

action, state abandonment or inability to act, or a state

situation failed ". It is quite clear that this was the case in

Libya, mainly due to the heavy losses180. According to a report

by the International Commission of Inquiry of the UN Human

Rights Council, "international crimes, in particular crimes

against humanity and war crimes, were committed by Gaddafi

forces" 181. Secondly, there must be a right intention and the

179 In the Preamble to Resolution 1973 the following determination was added: “Reiterating the

responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties

to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of

civilians.”

180 International Criminal Court chief prosecutor, Luis Gabriel Moreno Ocampo estimated that 500–

700 people were killed by security forces in February 2011, See: ICRtoP, (2012) available at:

http://www.responsibilitytoprotect.org/.

181 Report of the International Commission of Inquiry on Libya, UN Human Rights Council,

A/HRC/19/68, (2 March 2012).

117

main intention of the intervention must be "to stop or avoid

human suffering" 182. Thakur (2012) stressed the following:

"If the real goal was to stop the killing, NATO states would

support a ceasefire and a negotiated agreement rather than

repeatedly vetoing both." There are three parameters that

concern the Libyan intervention that can guarantee that the

right criterion of intention is respected. First of all, it is

essential that the intervention be carried out collectively: the

military intervention in Libya was a multilateral operation.

Secondly, the intervention must be supported by the

population of that country. The population of Libya has

requested an intervention to stop the serious violations of

human rights by the Gaddafi regime. The third element is the

support of other states in the region. In the case of Libya, the

GCC and LAS called on the international community for a no-

fly zone and appeared utterly supportive. Therefore, the three

distin- guishing benchmarks for a right intention for the

intervention in Libya were fulfilled183. The use of military

intervention in Libya can be labelled somehow as a last resort.

Prior to the intervention, several diplomatic efforts had been

182 Ramesh Thakur, Libya and the responsibility to protect. Between opportunistic humanitarianism

and value- free pragmatism (Institute for Security Studies 6 March 2012) 3.

183 Europe’s World: “The Responsibility to Protect (R2P) and Libya”, (02-07-2011) available at:

http://www.europesworld.org/NewEnglish/Home_old/PartnerPosts/tabid/671/PostID/2621/language/

en- US/Default.aspx accessed on 01 July 2014.

118

made and arm embargo and targeted sanctions were imposed.

Critics claim that the case of Libya can’t be described as a last

resort because peaceful measures were not fully exhausted.

There were no at- tempts to apply peaceful methods to protect

civilians, and the speed of the intervention by NATO has

become also the target of criticism 184. As Simmon (2011)

noted:

“It seems as though the UNSC was unwilling to pursue other

options, and thus appears to have failed to take into account

one of the primary precautionary principles enshrined by

R2P185.”

The fourth benchmark set forth by the R2P doctrine is that the

intervention must be proportional. The coali- tion chiefly used

the enforcement of a no-fly zone, and it was rather effective.

Thus, one can argue that the coalition applied proportional

force. As Meyer (2011) noted that “there are no indications

that the scale, duration or intensity were out of proportion to

184 E-international Relations, ‘Why Intervention in Libya was Justified’ (25-01.2012) available at:

http://www.e- ir.info/2012/01/25/why-intervention-in-libya-was-justified/ accessed on 21 November

2013.

185 Simmon, ‘Comment on Libya and the Responsibility to Protect’ (2011) available at:

http://blog.simmonli.com/2011/03/comment-on-libya-and-the-responsibility-to-protect/ accessed on

10 Febru- ary 2014.

119

the Libyan military intervention186.” However, the Libyan case

has been questioned by some critics because of the arming of

the rebels by NATO, which violates the principles of the R2P

doctrine187.

The fifth point is a reasonable perspective. Evans asked the

following question to verify this criterion: "Will those at risk

be overall better or worse off ? 188" In the case of Libya, it is

rather difficult to answer this question. Many believe that the

NATO operation has saved tens of thousands of citizens in

Libya .

However, others, including those members of the UN Security

Council who abstained from voting on resolution 1973, firmly

believe that NATO has over-abused the mandate of the UN

Security Council 189. The NATO intervention was attacked

because a considerable number of unarmed civilians were

186 Jason D. Meyer, ‘From Paralysis in Rwanda to Boldness in Libya: Has the International

Community Taken 'Responsibility to Protect' from Abstract Principle to Concrete Norm Under

International Law?’ Social Science Research Network (2011) available at:

http://dx.doi.org/10.2139/ssrn.2035083 accessed on 14 June 2014.

187 Dayvid Hillstrom, ‘The Libyan No Fly Zone: Responsibility to Protect and International Law’

(2011) Foreign Policy Journal.

188 Gareth Evans, The Reasonability to Protect: Ending Mass Atrocity Crimes Once and for All

(Washington DC: Brookings Institution Press 2008) 256.

189 Dayvid Rieff, R2P, RIP, The New York Times, 6 (7 November 2011).

120

killed 190. As noted above, critics have also firmly condemned

NATO for siding with the rebels and failing to observe the

neutrality of civil protection and pursuing regime change191.

As Hall Findlay (2011) notes:

"R2P stands for the prevention of the slaughter of innocent

civilians and no for the support of Libyan rebels" 192.

In the end, it can be said that the criterion of correct authority

was met in the case of Libya, since the R2P doctrine states

that "There is no better body than the UN Security Council to

authorize authoritarian intervention for the purpose of human

protection ". The R2P the report is also formulated as

follows: "The best intention is better ensured with multilateral

operations, clearly supported by regional opinion ...."

The intervention was multilateral and received the support of

regional organizations . Despite considerable criticism, the

190 According to Human Rights Watch: eight NATO air strikes at least left 72 civilians dead,

including 20 women and 24 children, See: NATO: Investigate Civilian Deaths in Libya(14 May

2012) Human Rights Watch, available at: http://www.hrw.org/news/2012/05/14/nato-investigate-

civilian-deaths-libya accessed on 25 November 2013.

191 Liam Fox, then Secretary of State for Defense when asked whether self-determination for the

people of Libya and regime change was a goal he stated: “it is clear that regime change would be a

major policy initiative and one that is not signed up to in the Resolution” See: House of Commence

Defence Committee, ‘Operations in Libya’ (2012) Volume I: Report, London, 25, available at:

http://www.publications.parliament.uk/pa/cm201012/cmselect/cmdfence/950/950.pdf accessed on 05

April 2014.

192 Martha Hall Findlay, Can R2P survive Libya and Syria? (Canadian Defence & Foreign Affairs

Institute 2011)

121

case of Libya has been hailed as a successful "first real test"

of R2P.

2.9 The Difficult Choice to Intervene: Final Reflections

on the Dilemma Concerning the Management and Efficiency

of Humanitarian Aid

According to many British and American authors193, a military

attack against a State whose political authorities have been

guilty of serious human rights violations would undoubtedly

coincide, with rare exceptions, with the triumph of the universal

values of the international community and not with the

particular interests of the Been engaged in war action. It could

be argued, as US jurist Michael Glennon wrote, that in this case

- as happened in 1999 in the Nato war for the Kosovo issue -

the use of force would be nothing but the tool to realize the

"great ideal of justice ". Unanimously194 approved by the

doctrine, is then the recognition that the United Nations Charter

has raised the States from the exclusive pertinence on human

rights by the state constitutions. The theory of human rights has

pervaded the international order in depth, to the point of

193 MARCON G, Le ambiguità degli aiuti umanitari. Indagine critica sul Terzo settore,

Milano, Feltrinelli, 2002, p. 258 e ss.

194 BETTATI M., KOUCHNER B, Le Devoir d’ingérence, Paris, Denöel, 1985, p. 36 e

ss.

122

becoming an integral part of it. Since the establishment of the

United Nations, human rights will therefore no longer be

considered the same as "a private affair" of each nation, nor

would States be allowed to take refuge within their own

borders195.

How much Kant and Kelsen had historically supported has

gradually come true with the recognition of the supremacy of

international law. The institutions of judicial pacifism have

become established and individuals are now considered, fully,

subjects of international law. Then, the definitive eclipse of

state sovereignty must be reduced to the institution of the UN.

Even the UN is, as is known, legally permeated by the principle

of state sovereignty. This can be deduced, in particular, from

the art. 2 of the Charter which, once the principle of "sovereign

equality" has been affirmed among all nations, prohibits (in

paragraph 7) any form of interference in the internal affairs of

individual States. In this regard, it was highlighted that,

ultimately, the UN Charter is based on three universal legal

principles: peace, fundamental rights and the equality of men

and peoples196.

Three principles which, far from integrating idyllically (as

theorized, in recent years, by some neo-Kantian philosophical

currents) increasingly tend to place themselves in an open and

195 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione

umanitaria, Il Mulino, Bologna, 2003, p. 214 e ss.

196 MARCON G, Le ambiguità degli aiuti umanitari. Indagine critica sul Terzo settore,

Milano, Feltrinelli, 2002, p. 258 e ss.

123

striking conflict with the realistic and statistic conception of the

UN and with the principle of non-interference in the internal

affairs of States. The relationship between the juridical theory

of inviolable rights and the presumed recognition of the

sovereignty of states thus confronts us with a paralyzing

contradiction that neither the norms of the UN Charter nor the

historical evolution of international law have been able to to

date, to solve. And the reasons for this contradiction are

particularly evident today: the main violations of human rights

are committed by "sovereign" states, but for sovereign states

that violate human rights adequate sanctions are not envisaged.

The humanitarian intervention is therefore characterized by

application problems that pose questions of sovereignty in the

first place, and then also of recognition of the subjects to help,

except for the civilians who enjoy protection in a way that we

can define as objective. In some cases, humanitarian law is

faced with an important dilemma linked to the decision to

intervene or not. In many of these cases the conflict (of

interpretation and intervention) has placed the organizations for

the defense of human rights against humanitarian aid agencies,

showing however to both of them the dramatic and difficult

solution of a dilemma such as that emerged in Rwanda. In fact,

Rwanda had to decide for an intervention197. It was not possible

to understand if it was preferable to accept the death of

197 IGNATIEFF M, Mission Possible?, «The New York Review of Books», vol. XLIX,

n. 20, December 19, 2002, p. 36 e ss.

124

hundreds of thousands of refugees, among whom were certainly

numerous those responsible for the genocide, or to help them

risking that they could regroup to resume and complete the

genocide198. Aid and humanitarian assistance are always an

instrument of struggle for power, because they arrive in regions

without primary goods and essential resources. Goods that in

many cases are exploited first by those who are stronger

militarily and politically organized. It is not always easy or

possible to divide between combatants and non-combatants,

between legitimate and illegitimate situations. Any

humanitarian intervention or humanitarian assistance is placed

in a scenario to the advantage of someone and to the

disadvantage of someone else. The priority objective is

certainly to go to reduce the negative effects of aid. The

impossibility of offering protection to the same people to whom

humanitarian aid is brought by bringing water and vaccines

without seeing the context within which refugees live and

reproduce, can at the same time prolong the conflict, contribute

substantially to the war economy, legitimize control on the

population of refugee camps by military groups responsible for

the primary or secondary role of the humanitarian catastrophe

that is sought to alleviate. If the risk exists that a necessary but

difficult aid may become useless or counterproductive, political

198 BECKER D, You Better Be Good. Review of David Rieff, «Trn-Newsletter 2»,

Hamburg Institute for Social research, May 2003, URL

TraumaResearch.net/fr_beck.htm.

125

science, for example, suggests to humanitarian agencies to find

the neutral and apolitical roots. In this, humanitarian assistance

helps those who need it most. Political issues come later and

certainly focus on human rights. It should also be pointed out

that political issues are not on the agenda, because this is the

"new" will of humanitarian agencies199. Humanitarian aid is an

integral and unavoidable part of ongoing conflicts, of old as

well as of new wars. Between 1983 and 1985, humanitarian aid

to alleviate famine in Ethiopia was an important tool in the

population control action by the Mengistu government. The

offensive of this government against insurgents against

opponents had been the basis of the famine itself, aggravating

the situation prior to sending aid in many areas and for some

population groups. An analogous dilemma was that of Bosnia:

assisting populations who wanted to resist ethnic cleansing

could mean putting their physical safety at risk, helping them

escape could mean an endorsement of the ethnic cleansing

policy undertaken. The drama of Srebrenica, which also united

all the contradictions, errors, foolishness and bad faith of the

United Nations and the West, was also born of this dilemma

and the idea of being able to solve it simplistically. There are

choices related to the possibility of intervening or not

intervening and will continue to recur and that cannot be

resolved with impossible and anachronistic technicalities or

199 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione

umanitaria, Il Mulino, Bologna, 2003, p. 214 e ss.

126

neutralisms. Humanitarian principles must be opposed against

other principles to determine which course of action can

produce the best good. In this perspective, the transformation of

humanitarianism towards a universalism based on human rights

testifies precisely to the existence of this choice200.

Kofi Annan was among the major architects of this

transformation and he repeatedly took it for granted that in the

current historical situation, humanitarian assistance and human

rights are part of the same battle for a more just, peaceful and

balanced world; and it is no coincidence that he came to the

leadership of the UN after the worst failures in its history. What

is certain is that the conflicts of the last fifteen years are perhaps

more complex than the previous ones in the justifications that

accompanied them and in the ways of understanding201.

However, they are similar to the past if we look at the level of

barbarism manifested (just think of Indochina or Central and

South America during the Cold War). It is therefore not the

level of violence that has increased humanitarian intervention,

which is an effect of conflicts extended to regions where

previously no help could be sent, of an absolute extension and

relatively of international aid, of the end of patronage of the

superpowers that facilitates new forms of local war economies.

This aid is considered as a primary need by disintegrated states,

200 MARCON G, Le ambiguità degli aiuti umanitari. Indagine critica sul Terzo settore,

Milano, Feltrinelli, 2002, p. 258 e ss.

201 FLORES M., Tra carità e investimento: paradossi e problemi dell’azione

umanitaria, Il Mulino, Bologna, 2003, p. 214 e ss.

127

weak governments and factions that tend to exploit and market

public goods and services, the emergence of a "right to

intervention" that has multiplied the presence of humanitarian

agencies202.

In this context and also returning to the issue of duty to

intervene, it appears obvious that the rationale for the

responsibility to protect is the respect of human dignity as a

supreme value, so high that it even justifies military

interventions that would otherwise be not only illicit, but also

among the most serious wrongdoing that states can commit.

The practice developed over the years suggests that the need to

intervene is also of a global order and security, that is of a

political-strategic nature, rather than, or only, moral.

Even the attribution of the authority to decide to the Security

Council tends to frame the issue in terms of global security if it

is considered that the Council can act if it finds a "threat to

peace", which certainly can materialize even in situations of

very serious violations of human rights, but on the basis of

assessments in which it is difficult to separate the humanitarian

part from the political-strategic part. If this were the case, the

critics' thesis would be of a certain weight according to which

the humanitarian intervention in implementation of the

responsibility to protect is actually much more motivated by

202 PICCIAREDDA S, Diplomazia umanitaria. La Croce Rossa nella seconda guerra

mondiale, Bologna, Il Mulino, 200, p. 236 e ss.

128

political-strategic reasons of the States that intervene (or that

support it in the Security Council), as a rule the stronger states.

Moreover, even in the affirmation of the principles of

responsibility to protect the oppositions of the States there have

been numerous. Among the states that have opposed the

humanitarian intervention implementing the responsibility to

protect, a certain number have emphasized how the concept of

responsibility to protect is vague and requires greater definition

and further discussion, if only to clarify what really stands out

from traditional humanitarian intervention. According to

Algeria, for example, the responsibility to protect "is extremely

difficult to distinguish from the idea of humanitarian

intervention and the countries formally rejected in 1999", while

according to Egypt "the legal underpinnings of the theory

remain unclear "203.

Humanitarian intervention, therefore, is not only feared, as

imperialist, by several weak states, but it does not meet an

unconditional acceptance even among the strongest states,

which have no intention of seeing themselves obliged.

Moreover, the cost of the military operation is added to the cost,

both economic and logistic, of the re-establishment of an

acceptable level of social life on the spot and of post-war

institutional structures, with very little certainty about the

outcome and timing. The governments of the democratic states

are also reluctant to intervene, considering that, as experience

203 UN Doc. A/59/PV.86, p. 9

129

confirms, military interventions, although sometimes requested

by public opinion, do not attract votes when the intervention is

successful while making them lose when it fails. Significant in

this regard is the "moral" position, contrary to any obligation of

the Security Council and assumed by the United States. It is

equally significant that the non-aligned states themselves,

strongly opposed to humanitarian intervention, are substantially

in favor of the veto rights of the five permanent members as a

guarantee against the abuses of the great powers. In short, a

certain consensus on the principle exists, but the disagreement

is marked on the specific point of a legal regime that allows

humanitarian intervention in general terms204. We are referring

to the States belonging to the Non-Aligned Movement (NAM)

who severely criticized the responsibility to protect the doctrine

of intervention. The same States both by excluding that this is

an emerging rule (and even less already existing) and by

believing that the significant aspect among the three suggested

by ICISS (i.e. prevent, react and rebuild) is the military aspect.

In such a vision the responsibility to protect is a mere expedient

of the great powers to protect the desire for interference within

the different scenarios of war. States in favour of intervention

impose their interests and values on the weakest states. The

same Non-Aligned states underline the contradiction of the

responsibility to protect the doctrine of intervention by

204 FOCARELLI C., La dottrina della responsaibilità di proteggere e l’intervento

umanitario, Riv. dir. internaz., fasc.2, 2008, pag. 317

130

demonstrating how it aims to reduce sovereignty in the name of

universal humanitarian considerations205. The Russian

Federation, for example, has strongly denied that the

responsibility to protect is to be regarded as implicit in

international law and that there is in fact no sort of international

agreement on these concepts.

Conclusion

The responsibility to protect could have been a necessary

condition resulting from the lack of UN authority to intervene

in cases of mass atrocities, systematic violations of human

rights inactivity and the international community's reluctance to

be involved in situations such as genocide in Rwanda. The

chapter shows how in the case of Libya the invocation of the

R2P doctrine by the international community has led to the

authorization of "all necessary measures" to protect civilians in

Libya; stressing the inability of the international community to

act in time in Rwanda, despite the same or even more serious

violations of human rights. The recognition of the legality, as

well as of morality, of the right to such intervention is,

therefore, essential for the preservation and progress of the

world legal order. The controversial intervention in Libya and

205 The Russian Federation, for example, has strongly denied that the responsibility to

protect is to be regarded as implicit in international law and that there is in fact no sort

of international agreement on these concepts. FOCARELLI C., La dottrina della

responsaibilità di proteggere e l’intervento umanitario, Riv. dir. internaz., fasc.2, 2008,

pag. 317idem, p. 192 e ss.

131

the impasse in Syria, which will be analyzed in the next chapter,

have seriously worried the future of the R2P principle in an

increasingly complex system, and many international scholars

and commentators believe that the failure to act in Syria

undermines the credibility of the UN Security Council and "will

transform the R2P doctrine from an admirable goal into a

hypocritical and exploited political instrument". (Thomas G.

Weiss, 2003) .The most obvious lesson that emerges is that the

implementation of the R2P doctrine is selective and a "pick and

choose policy” is a problem that must be addressed. Many

scholars believe that the use of the R2P doctrine is becoming

increasingly case based case.

132

CHAPTER THREE

3 The Syrian crisis and its evolution

Introduction

The Syrian geopolitical centrality is given by its strategic

geographical position, which leads it to be the intersection point

of the Palestinian, Lebanese and Iraqi issues.

Modern Syria is the result of a political compromise sanctioned

during the Great War by the Sykes-Picot agreements between

the United Kingdom and France. But it is after the invasion of

Iraq by Saddam Hussein that Syria has accentuated its role as

central country of the Levant: the strongest of the states on the

border with Israel, occult director of the last 35 years of

Lebanese history, interlocutor of the Saudi Arabia, an ally of

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the Islamic Republic of Iran came across. Of all the countries

involved in the "Great Arab Revolt of 2011", Syria exerts a

regional influence second only to that of Egypt. The wave of

protests that have shook Arab societies , triggered a series of

chain reactions that led to the to the end of the power of Ben Ali

in Tunisia, Mubarak in Egypt and Gaddafi in Libya. Clashes

and protests have spread to other countries, such as Bahrain, as

a civil war in Syria and Yemen. : but will be precisely the fear

of the extension of Iranian power throughout Syria, both

political and military, a determining factor in inducing the

United States, France and Great Britain to intervene and keep

up the tension.

3.1 Syria’s profile

The Syrian geopolitical centrality is given by its geographical

position that brings it to be the point of intersection of the

Palestinian, Lebanese and Iraqi issues historically, the role

played by the Syrian Arab Republic is that of a revolutionary,

socialist and national vector, which promoted the pan-Arabist

vision common to the Arab nationalist movement of the Second

World War and subsequently encouraged and resumed by the

Egyptian Nasser revolution. Modern Syria is the result of a

134

political compromise enshrined during the Great War from the

Sykes-Picot agreements between the United Kingdom and

France. In order to gain the support of the Arab populations

against the Ottomans, the two powers promised the creation of a

single Arab state, abiding by the dream of those peoples, but in

fact by agreeing to share their territories. After the defeat of the

Ottoman Empire, in fact, it was divided among the winners: in

1920 France obtained the current Syria and Lebanon, while the

Kingdom of United went the current Palestine, Israel, Jordan

and Iraq206. These new states were created without taking into

account the complex ethnic-religious local mosaic: the balance

that the Ottoman Empire had managed to achieve between the

provinces, discouraging the emergence of confessionally

connoted political entities, was broken by this remapping of the

Middle East, whose administration was organized precisely on

the basis of ethnic-religious parameters207. Under mandate

French authorities were granted those rights long denied,

including access to the and military service, so much so that

they ended up with a being the majority ethnic component of

the mandatory army. In addition, they were able to benefit from

economic subsidies and tax reductions not applied to other and

ultimately came out of social isolation. Soon the military

became the most cohesive force in Syrian society. It increased

the monopoly of economic power. Tensions exacerbated by

206 GILL T. D., Classifying the Conflict in Syria, Stockton Center for the Study of

International Law, 92 INT’L L. STUD., 2016, pp. 352-380.

207 DAWLATY, Transitional Justice in Syria, Heinrich Boll Stiftung, 2013, pp. 87

135

the abolition of community privileges of Alawites and Druze,

from banning religious leaders of the minorities to meet in

public, by the law that established that the President of the

Republic should be Muslim and which reduced the

representation of the minorities in Parliament. Things got worse

with the Arab-Israeli war of 1948-49: the Syrian army was

defeated and humiliated and blamed on the government,

reacting with a coup d'état: in March 1949 the Kurdish colonel

Husni Za'im deceased President Quwwatli, establishing the first

of a long series of coups that destabilized Syria for years. In

1958 Syria joined Egypt in the United Arab Republic (RAU),

seen as the reunification of the Arab world in the name of

redemption and resistance to Israel. The RAU, however, was in

fact an annexation of the Syria to Egypt, based on the police

state and the repression of civilian life, and politics. In 1961 the

umpteenth military coup in Syria sanctioned the end of the

RAU and the the new independence of Damascus. In 1963,

however, another coup followed decreed the bankruptcy of the

Republic and finally brought the Baath to power. In 1966

another coup followed, which ousted the Nasserists and the old

Baath's guard, including his two founders, and sanctioned a

"new" Baath, of whom Hafez al Assad was Minister of Defence

and head of the Air Force. Feuds and the party's internal purges

and the disastrous Six-Day War with Israel in 1967, when Syria

lost the Golan Heights with its precious resources water,

prompted Hafez al Assad to implement another internal coup in

136

the party's 1970 that made him the absolute leader of Syria.

Hafez al Assad worked to build a power and to create a system

that would prevent coups d'état against it.

Especially after Saddam Hussein's invasion of Iraq, Syria has

accentuated its role as the central country of the Levant: the

strongest of the states bordering Israel, occult director of the last

35 years of Lebanese history, interlocutor of Saudi Arabia, ally

of the Islamic Republic of Iran. Of all the countries involved in

the 'Great Arab Uprising of 2011', Syria exerts a regional

influence second only to that of Egypt.

The consequences of a possible overthrow of the regime of

Bashar al Assad has important effects on the internal instability

of Syria, dramatically elevating the risks of the rekindling of the

Arab-Israeli conflict and the start of yet another civil war in

Lebanon. Syria is not new to sensational attempts to shake off

the yoke baathista and the Assad family, which has held power

firmly since 1971208.

In 1982, on the occasion of a gigantic revolt sponsored by the

Muslim Brotherhood in the city of Hama, Hafiz al Assad, father

of the current president, bombed the city causing about 20,000

deaths. Also in the 2010 edition of his report, Freedom House

placed Syria among the countries where freedom and human

dignity were most widely and violently trampled on. Despite

208 AL-HAJ SALIH Y., The Syrian Shabiha and Their State - Statehood & Participation,

Heinrich-Boll-Stiftung, 2014, pp. 9

137

this gigantic repressive apparatus and the ability of the Assad to

skilfully play the card of "resistance against the Zionist entity",

on March 15, 2011 the revolt against the regime began in the

southern city of Deraa, then spread throughout the country, with

a new symbolic epicenter in the north, in the 'martyr city' of Jisr

ash Shugur (near the Turkish border). Since that March 15,

every Friday, after the prayer, hundreds of thousands of Syrians

have defied the most brutal violence of the security forces since

Damascus itself, triggering an escalation of protests-opposition

(more than 1300 deaths ascertained in the first three months)

reminiscent of that of the Iranian revolution of 1978-79, even if

in the absence of a charismatic leader like Khomeini. The street

demonstrations that started in February 2011 were expression of

a discontent that has its roots in a History, as seen, farther than

2011. The gap between powerful oligarchy and the rest of

society is been exacerbated by the absence of political reforms

and by the wrong reforms that Bashar started in 2004. He

privatised the insurance sector, which was one of the most

important in the world profitable, excluding industry from

modernisation. Bashar did not accompany the economic

liberalization with adequate state support; it dismantled many

agricultural cooperatives without providing social security

benefits, or compensation, hitting the lower sections of society

hard. The sector agricultural sector was the most affected, also

because of an unprecedented drought that had begun in 2006.

138

3.2 Syria’s civil war explained from the beginning

The wave of protests that have shook Arab societies, starting

with the self-immolation of the young Tunisian Muhammad

Bouazizi in December of 2010, triggered a series of chain

reactions that led to the to the end of the power of Ben Ali in

Tunisia, Mubarak in Egypt and Gaddafi in Libya. Clashes and

protests have spread to other countries, such as Bahrain, as a

civil war in Syria and Yemen. Towards the end of 2011, the

various groups opposed to the regime of President Bashar al-

Assad have rebelled. These have been joined by the Free Syrian

Army, the Kurdish militias and the Islamist groups. They

rebelled against the government in office and so began a bloody

civil war that is still going on. Interference from many foreign

countries has immediately influenced the fate of the of the war,

affecting not only its continuation, but also increasing its size

and violence. The United States, France, the United Kingdom,

Saudi Arabia, Qatar and Turkey have all deployed in support of

the opposition forces. Russia, China, Iran, the movement

Lebanese Shiite Hezbollah and Venezuela, however, in support

of the regime of al-Assad209. The This situation is further

aggravated by the fact that the civil war was the occasion for

the for the unleashing of the violent tendencies of extremist

209 ARIMATSU L., CHOUDHURY M., The Legal Classification of the Armed Conflicts in

Syria, Yemen and Libya, International Law PP 2014/01, Chatham House, 2014, pp. 43

139

religious groups, already present in the country and region210.

The protests spread rapidly from city to city - Homs, Damascus,

Idlib etc.. - swallowing in the flames what is still today, at least

nominally, the Syrian Arab Republic. The underlying dynamics

that drove the Arab uprisings are simple. A rapidly growing

young population on the one hand and a rigid repressive regime

incapable of change on the other. The protest, moreover, has

been repeated in a similar way in various countries, but the

consequences have been different, and nowhere have they been

as ferocious as in Syria. Here the first hopes that Assad could

end up like other dictators have crumbled into the ruins of his

ancient cities and the destroyed lives of his people. In July

2011, after months of blood and community inaction

international, peaceful protests were accompanied by armed

opposition made up mainly of deserters from the regular army.

Soon, many civilians joined the ESL took up arms to defend

homes and families from force raids

of the government. The militarization of the revolt marked an

irreversible evolution because it actually supported the regime's

strategy, which it could finally fight on its own grounds of

violence by legitimizing the repression of "the groups armed."

To avoid falling into the spiral of revenge and to regulate

conduct of its combatants, ESL adopted a Code of Conduct in

accordance with the law which not only prohibited gratuitous

210 LY M., RENZI D., Dall’Egitto alla Siria, il principio di una rivoluzione umana ed i suoi antefatti,

Prospettiva Edizioni, Firenze 2014, pp. 379

140

violence, the mistreatment of people with disabilities, but also

the prisoners, torture and summary executions, but also foresaw

that the weapons would be handed over to the transitional

authority that would take power after the fall of the Assads.

The Syrian conflict has gone through several phases, but at least

until 2012 the classification is rather linear. The Independent

International Commission of Inquiry on Syria, both in the first

report, which covers the period between March and November

2011 in both the second and the third reports covers the period

between November 2011 and February 2012 initially excluded

the application of International Humanitarian Law. This

exclusion was not capable of establishing the existence of the

two criteria that determine a non-international armed conflict.

Things have changed in August 2012 with the third report,

covering the period from February to July 2012, in which the

Commission established the existence of an armed conflict. In

fact, there are many elements that until 2012 meet the first

criterion that defines an internal armed conflict. Determinants to

the intensity of the hostilities, the type of weapons used against

demonstrators, the fact that the government has deployed the

armed forces to contain the situation and adopt genuine military

operations against the demonstrators. On the same territory,

there may be situations of conflict of different nature, as in the

Syrian case, and classify the armed conflict entirely as

international or domestic is inappropriate. In Syria this has

happened many times over by more Third States. The first case

141

is that of Iran, which has sent its own troops and bodies of the

Syrian elite alongside government troops211. The case of Russia

is emblematic because after sending military advisers, land

forces and armaments also deployed aviation and warships in

support of the government front. Also the case of the

intervention of the international anti-ISIS Coalition represents a

further example that sees a coalition of third States militarily

engaged in Syrian territory against ISIS. In this perspective the

Syrian conflict is a "mixed" conflict and therefore determine the

existence of (at least) a conflict international alongside (at least)

one internal. According to some authors would fall within the

internal conflict classification, in addition to that between

government and between the International Coalition and ISIS

and between Turkey and the Kurdish militias of the YPG212.

In this chaos, two external actors, not linked to the regional

context but even of global importance, have entered the game

more decisively: Russia, in defence of Assad, and the United

States, in eminently anti-IS function. Washington, starting from

the areas of influence on the border with Jordan in the south and

Turkey in the north, has contributed to the creation of the FDS

(Syrian Democratic Forces, Kurdish-Arab units dominated by

the Kurdish YPG (People's Protection Unit), the People's

211 ARIMATSU L., CHOUDHURY M., The Legal Classification of the Armed Conflicts in

Syria, Yemen and Libya, International Law PP 2014/01, Chatham House, 2014, pp. 43

212 LY M., RENZI D., Dall’Egitto alla Siria, il principio di una rivoluzione umana ed i suoi antefatti,

Prospettiva Edizioni, Firenze 2014, pp. 379

142

Protection Militias linked to the PYD, the Democratic Union

Party). These formations have become protagonists of a

strenuous resistance against the Islamic State, as in the case of

the historic battle of Kobane, which inaugurated the slow

process of conquest of the territories controlled by Daesh. The

culmination of this path came with the fall of Raqqa in October

2017, thanks to the support of the U.S. Air Force, while the

Russians have pursued a dual strategy, on the one hand

attacking the Islamic State with air raids from the coastal bases

of Tartus and Latakia, and on the other supporting with

conviction the regime during its initiatives to regain the areas

controlled by the anti-Assad rebels.

With the regional and global powers in these ranks, the history

of the conflict remains fairly constant from 2015 onwards. With

the support of Iranian militias, Hezbollah and Russian

contractors, as well as the Moscow Air Force, the Assad regime

has managed to regain control of almost the entire Syrian

territory, passing from the fundamental take of Aleppo in

December 2016 to arrive until today. Moreover, until now

Damascus has been able to count on the help of a precious ally:

the Shiite Iran of the "Ayatollahs". Tehran immediately sent its

own militias to Syria, at the same time favouring the inclusion

in the conflict of the Hezbollah who have fought in all these

years alongside the loyalist armed forces.

143

Tehran has thus extended its hegemony over Syria, which is

worrying not only for the Saudis, but also for the main ally of

the whole West: Israel. The fear of the extension of Iranian

power throughout Syria, both political and military, is at this

time a determining factor in inducing the US, France and

Britain to keep up the tension.

3.3 The Role Played by the UN in Syria: the Actions

Implemented and their Effectiveness

Serious human rights violations grew exponentially with torture

systematic, even on soldiers discussing orders and even on

children. These acts gave rise to harsh condemnations by the

UN Security Council, the Secretary General Ban Ki-moon and

the sanctions of the USA and many European countries. In May

2011, army tanks entered Deraa, Baniyas, Homs, Ar Rastan and

the suburbs of Damascus in an attempt to crush the protests. I

access points were closed to prevent the arrival of food and

medicines, while the and summary executions. In August, the

European Union and other Western States adopted restrictive

measures against the Syrian government, including the oil

boycott, the freezing of government assets, the introduction of

import duties on Syrian goods and a travel ban on senior

officials. On 22 August 2011, the UN Human Rights Council

established by resolution S-17/1 The Independent International

144

Commission of Inquiry on Syria with its mandate to investigate

all alleged violations of international law and of the law of the

human rights since March 2011 and to identify those

responsible213. Syria is today a complicated chessboard in

which regional and global powers are fighting for their own

interests, both with direct military involvement and indirect.

Authoritative commentators have spoken of war by proxy. A

war in which two (or more) powers do not face each other

directly in the field, but through third parties that they support

militarily. In the Syrian case the two sides in the field, Syrian

government and rebels, were supported from the beginning by

two opposing fronts of actors: Russia, Iran, Lebanese Hezbollah

on the one hand; Turkey, Saudi Arabia, Qatar, USA, France,

United Kingdom of the other part. Without going into the merits

of the geopolitical dynamics, it is of interests has made the most

of this complex network of interests the various positions are

irreconcilable and attempts at peace are in vain, not least

because many of the powers involved sit on the Security

Council and have the power to veto, which has in fact paralysed

over the years any action regarding Syria. Despite this, the UN

has tried several times to mediate negotiations between

governments and opposition.

The situation in the country has been the subject of observation

by the Nations since 2011, when the United Nations Human

213 ARIMATSU L., CHOUDHURY M., The Legal Classification of the Armed Conflicts in Syria,

Yemen and Libya, International Law PP 2014/01, Chatham House, 2014, pp. 43

145

Rights Council has been the International Independent

Commission of Inquiry for Syria was established in order to to

investigate human rights violations during the civil conflict. The

various reports drawn up by the Committee of Inquiry have

shown a picture of complex and alarming214.

In fact, the 2014 report already showed that, on the one hand,

government forces were carrying out repeated attacks against

the civilian population, committing systematically murder,

torture, rape and enforced disappearance. We're talking about

conduct that, taken as a whole, constitute crimes against

humanity. Further pipelines, including murder, torture and

sexual violence, always carried out by the same forces

governmental, constitute war crimes instead. Finally, the report

pointed out that the appeal indiscriminate to the bombing and

use of illegal weapons themselves causing massacres of and

spreading terror among the population. On the other hand, the

Commission Inquiry pointed out that the same war crimes and

crimes against humanity were also committed by armed non-

governmental groups and, with particular cruelty, by ISIS. The

reports of the Investigation Committee show that all the fighting

214 BUFALINI A, “Sul fondamento giuridico delle misure adottate dal Consiglio di

sicurezza con la risoluzione 2118 (2013) sulla situazione in Siria”, in Rivista di diritto

internazionale 2014, p. 206 ss.

146

parties have committed and continue to commit atrocious acts,

including crimes international215.

The first Geneva Conference in June 2012 produced the first

Geneva Communiqué, a six-point peace plan which provided

for an end to the violence, access for humanitarian agencies in

Syria, the release of detainees, free access to the Country of

international media. In particular, they tried to initiate an

inclusive dialogue and a political transition. The points of the

plan were never implemented. The second Geneva Conference,

January-February 2014, was another failure, inevitable also for

the intransigence of the parties: the regime does not want a

government of transition because it would imply surrendering

power, while the opposition posits as a precondition the

resignation of Assad and the full implementation of the

statement of Geneva I. On August 21, 2013 one of the most

violent attacks on the population takes place in Ghuta Syrian

civil society, conducted through the use of chemical weapons.

Rebels and regular army are and international polarisation is

accentuated216. The United States and United Kingdom call for

emergency measures for possible military action while Russia,

China and Iran warn against any attack on Syria. In in the mean

time, the Security Council is convened in an extraordinary

215 ANNONI A, L’occupazione “ostile” nel diritto internazionale contemporaneo, Torino,

2012, p. 59

216 CHARNEY C., QUIRK C., He who did wrong should be accountable” Syrian

Perspectives on Transitional Justice, Syria Justice and Accountability Centre, Tansitional

justice research series, n° 1, Gennaio 2014, pp. 86

147

session in New York. of the United Nations, but once again the

five permanent members prove incapable of giving birth to

decisive but above all shared decisions, and yet another

resolution is blocked by Russian and Chinese vetoes217. On 27

September 2013, following the successful conclusion of

bilateral negotiations conducted in Geneva between the US and

Russian Foreign Ministers, the Council of Security

unanimously adopted Resolution 2118 (2013) on the

elimination of Syrian chemical weapons. For the first time since

the beginning of the civil war, the five permanent members of

the Security Council have agreed on a shared text on Syria. In

fact, the Geneva Accord and Resolution 2118 (2013) have been

celebrated as a success of diplomacy and the multilateralism on

unilateralism. Resolution 2118 (2013) led to considerable

progress on at least two fronts. unilateral attack by the United

States on the model of Kosovo, by leading the issue into the

mainstream of collective security; and secondly, it has

strengthened the international regime for the control of

chemical armaments. The most innovative aspect of this

resolution is the following that the use of chemical weapons

everywhere (anywhere) has been considered a threat to

international peace and security within the meaning of Article

39 of the Charter. Therefore, any chemical attack, conducted by

217 BUFALINI A, “Sul fondamento giuridico delle misure adottate dal Consiglio di

sicurezza con la risoluzione 2118 (2013) sulla situazione in Siria”, in Rivista di diritto

internazionale 2014, p. 206 ss.

148

each state (or non-state actor), wherever committed, will be

regarded as an automatic threat to peace and security.

international security. Since the resolution is binding for all the

Member States of the UN, it consolidates the universal ban on

the use of and extended it to the few countries not yet party to

the CWC. This terminology is not common in Council practice

of Security, the only precedent is in fact represented by the

resolution 1368 (2001) ("any act of international terrorism is a

threat to international peace and security).

The important resolutions proposed with regard to intervention

against of the Syrian crisis had in fact been subject to veto by

Russia and China. Such vetoes also, although motivated in a

different way by the two powers, are essentially direct as a

consequence of the important political and strategic ties

between the three nations, but are above all supported by the

inviolability assigned to the principle of state sovereignty of the

two powers that have affixed them. This principle clearly

clashes with the doctrines of responsibility to protect and

humanitarian intervention, placing the the Council is constantly

in a situation of impasse when it finds itself having to intervene

for the resolution of a conflict, although fortunately the other

bodies The Commission believes that the United Nations should

play a role of constant pressure for action218.

218 PAVONE R I., La siria e le armi chimiche: la risoluzione del Consigli di Sicurezza, La

com. Internazione, 2013, IV, 715 e ss.

149

Of particular importance is also paragraph 19 of the resolution,

in which the Council "demands" that non-state actors do not

develop, acquire, manufacture, come into possession of,

transfer, or use weapons of mass destruction (nuclear weapons,

chemical weapons, and their means of launching; it also

requires all parties to be given the opportunity to Member

States, and in particular the neighbouring States of Syria, to

inform the Commission the Council immediately of any activity

conducted in violation of that paragraph. Despite the

innovations introduced by the resolution, it also contains

significant elements of legal and substantive weakness. With

reference to the legal aspects, it should be stressed that the

Commission does not draw its own conclusions from this

Chapter VII of the UN Charter and therefore not to be used as a

basis for provides for no automatic action in the adoption of

sanctions in the event of non-compliance (as proposed by the

US, UK and France). Paragraph 21 of the resolution limits itself

to threatening, in the event of failure on the part of the Syrian

Government to cooperate in the performance of its duties

obligations, the adoption of 'measures' in accordance with

Chapter VII of the Charter of the United Nations. In particular

in this crisis, the General Assembly, the Human Rights Council,

the Secretary General and the High Commissioner for Human

Rights as well as the Envoy Special for the United Nations in

150

Syria have regularly informed and urged the entire international

community to act to make bloodshed in Syria219.

Certainly diplomatic attempts have been put in place, including

the six-point plan of Kofi Annan and the recalled Peace

Conferences held in Geneva, but unfortunately, the success of

such initiatives depends and will continue to depend only and

exclusively by the will of the States concerned. The history of

the conflict has shown that not only Russia and the USA are the

only powers that have determined the current difficult situation

and that have conditioned the evolution of the conflict. Turkey

played a decisive role in the outbreak of the Syrian uprising.

Since the first months after the beginning of the war, it had

hosted on its soil the command of the "Syrian Free Army",

initially headed by General Riyad al-Asad. The militia was

initially composed of deserters of the national army and

members of the Turkmen ethnic group, and then was expanded

by the accession of other brigades of various inspirations

(including Islamists)220. Over time, Turkey, a country adhering

to the Atlantic Pact, has done everything to get rid of the regime

of Assad, a perennial adversary, allowing even from its borders

the passage of numerous "foreign fighters". Erdogan then felt

219 BUFALINI A, “Sul fondamento giuridico delle misure adottate dal Consiglio di

sicurezza con la risoluzione 2118 (2013) sulla situazione in Siria”, in Rivista di diritto

internazionale 2014, p. 206 ss.

220 CHARNEY C., QUIRK C., He who did wrong should be accountable” Syrian

Perspectives on Transitional Justice, Syria Justice and Accountability Centre, Tansitional

justice research series, n° 1, Gennaio 2014, pp. 86

151

cheated by NATO, from which he expected direct military

intervention. For this reason he did not disdain to make deals

with Putin, temporarily changing his tactical position on

Syria221.

However, the conflicts with Assad have recently been

exacerbated, given the continuous clash on the Kurdish issue

(the loyalists have recently intervened in the city of Afrin to

defend the Kurdish minority from Turkish attacks). For this

reason, in order to fully recover the relationship with a

strategically important ally like Ankara (and also to ease its

pressures), Washington, Paris and London have decided to

intervene.

3.4 Syria Today

The repression of the revolts by the regime and the parallel

armed turning point of the rebel groups have created two blocks

quite distinct. On the one hand, the government of Assad and

the Syrian Arab Army loyal to him, on the other a rebel galaxy

divided between supporters of nonviolent civil disobedience

and armed groups from the Free Syrian Army (FSA). This

221 SASSOLI M, “Le droit international humanitaire mis à mal en Syrie”, in Plaidoyer

2/2017, p. 24 ss.

152

group, founded in July 2011, was composed primarily of

deserters of the regular army, who refused to suppress in blood

the demonstrations against the regime. However, this distinction

remains merely illustrative, because the picture would soon

have been complicated by both a dramatic escalation of the

conflict and the entry - or rather the further rooting - in the

Syrian conflict dynamics of regional foreign actors, each bearer

of its own agenda and interests222. On 20 September 2016

during the 71st session of the General Assembly of the United

Nations, the then Secretary-General of the UN Ban Ki-Moon

declared in the his speech: "Many groups have killed so many

innocents, but none so many as the government of Syria, which

continues to throw barrel bombs on the areas and to

systematically torture thousands of prisoners223. A harsh

accusation public to the Syrian government for its

responsibilities in the death of the greatest part of the civilian

victims of the conflict, which is reflected in the numbers and

the documentation collected from 2011 to 2016 on the victims

of the conflict224. Although The Commission's proposal for a

directive is difficult to implement, there are many bodies,

NGOs and Syrian committees dealing with this, although on 7

222 SASSOLI M, “Le droit international humanitaire mis à mal en Syrie”, in Plaidoyer

2/2017, p. 24 ss.

223 CHARNEY C., QUIRK C., He who did wrong should be accountable” Syrian

Perspectives on Transitional Justice, Syria Justice and Accountability Centre, Tansitional

justice research series, n° 1, Gennaio 2014, pp. 86

224 EGAN B “International Law, Legal Diplomacy, and the Counter-ISIL Campaign: Some

Observations”, in International Law Studies, vol. 91, 2016, p. 242.

153

January 2014 the Office of the UN High Commissioner for

Human Rights announced that it would stopped counting the

victims of the conflict because of the lack of access in the

Country and inability to verify sources. The last official report

before This decision was made in June 2013 and had 92,901

victims on 30 April. 2013. The figures relating specifically to

civilian victims are worrying: the The vast majority (95%) were

killed by government forces. Among the most accurate and

comprehensive Syrian organisations involved in documenting

and collecting data there is the Syrian Network for Human

Rights, which analyzed the data (latest estimates). Data are

public and can be consulted on an ad hoc website which, with

the help of the clear infographics shows the percentages of

civilian victims killed classified as so Syrian government,

rebels, Nusra, ISIS, Russian forces, YPG Kurdish forces and the

International Anti-Isis Coalition. The fact that there have been

war crimes and human rights violations in Syria is a fact that

has been well known since 2012, when the commission set up

by the United Nations put a precise figure in black and white:

both the regime and the rebel groups had been guilty of heavy

misdeeds against civilians. On the ground, the new

multipolarity that characterizes the Syrian conflict risks

translating into a decisional paralysis that will last for a long

time. In the rest of the world, this translates into obvious and

unprecedented difficulties for the international media to narrate

this conflict and arouse the interest of public opinion, especially

154

at this stage. The reference points of the unipolar era have

fallen: bloodthirsty dictators and religious extremists, the two

categories that have become the main targets in the Western

media universe in the last twenty years, appear to be opposed to

each other today, making it difficult for the public to take a

definitive position225.

In 2011, a revolt against a tyranny that has been gripping the

entire nation for over 40 years began. This revolt has been

exploited and interfered with by external interests, making it

one of the worst civil wars of the last century226. Those who

claimed, however, that after the defeat of Isis (which had

managed to conquer much of the territory) everything would

return to normal was quite disappointed. The international

accounts on Syria's future are still too strong, and the massacre

of the civilian population, unfortunately, can only continue for a

long time. In this game of mirrors and different overlapping

strategies that you get to the center of the matter, Damascus.

Assad has consolidated his power227. On the one hand, it

promises not to arrest the deserters who fled to Lebanon and

Jordan and want to return, on the other hand, it has enacted a

controversial law with the aim of confiscating land and property

225 DAWLATY, Transitional Justice in Syria, Heinrich Boll Stiftung, 2013, pp. 87

226 FERRARO T, “Determining the Beginning and End of an Occupation under

International Humanitarian Law”, in International Review of the Red Cross 2012, p. 138 e

ss.

227 EGAN B “International Law, Legal Diplomacy, and the Counter-ISIL Campaign: Some

Observations”, in International Law Studies, vol. 91, 2016, p. 242.

155

from those who have abounded in the country. In the meantime,

it continues to massacre its opponents, as shown by the satellite

images of the mass graves in Sednaya. A large part of the

country is now out of control and the violence does not stop.

Assad remains in power because now at stake are the economic

interests linked to the reconstruction of a country destroyed by

years of war and sanctions. From this point of view, we should

read the recent reopening of the Emirates embassy in

Damascus, a move unthinkable until a few months ago but

which is explained by the desire of Riyadh and the Emirates not

to leave too much free hand in Tehran in the region. Waiting to

understand what the role of the European Union will be in the

complicated game of reconstruction, the longer-term questions

remain. First of all, the return of refugees from Lebanon and

Jordan, whose future seems uncertain, given the regime's

inability to find a form of coexistence with the Sunni majority

of the country228.

Conclusion

Serious human rights violations have grown exponentially with

systematic torture, even on soldiers and even on children. These

acts elicited harsh condemnations from the UN Security

Council, Secretary General Ban Ki-moon and the sanctions of

228 SASSOLI M, “Le droit international humanitaire mis à mal en Syrie”, in Plaidoyer

2/2017, p.24 ss.

156

the United States and many European countries. On 22 August

2011, the UN Human Rights Council established by resolution

S-17/1 The Independent International Commission of Inquiry

on Syria with its mandate to investigate all alleged violations of

international law and the law on rights human rights since

March 2011 and to identify the main perpetrators. Syria is today

a complicated chessboard in which regional and global powers

are fighting for their own interests, both with direct and indirect

military involvement, whose balances are precarious and whose

end is still uncertain.

CHAPTER FOUR

4 The doctrine of Humanitarian Intervention and Responsibility to

Protect Applied to the Syrian Case

Introduction

157

The worsening of the crisis in the Syrian Arab Republic

("Syria") has quickly become the center of international

attention: from this moment, Syria has gone through a serious

humanitarian crisis, which still continues. The international

community has not only failed to prevent mass atrocities in

Syria, but at the same time did not even take timely and

effective measures to react promptly. Given the policy that has

characterized the Syrian crisis to date, the likelihood of

effective international cooperation on the reconstruction of

Syria is also devoid of concrete expectations.

But the main point that will be addressed during the chapter is

that the Syrian crisis involves multiple and serious problems

that undermine the importance of the principle of Responsibility

to be protected (R2P) in international relations and international

law. This crisis has highlighted the fact that a state can use force

for humanitarian purposes without the authorization of the

Security Council, an international legal issue that has always

been debated, but which has not emerged in the crisis in Darfur,

Libya or the Costa d ' Ivory.

4.1 Application of the R2P Principle in International Responses to the

Syrian Crisis

While the crisis in Syria was underway, the Security Council

discussed it for the first time during a meeting on the Israel-

158

Palestine negotiations on April 21, 2011, immediately after the

actions of the Security Council on R2P in Libya and Ivory

Coast in March 2011229 of March 2011, Syrian government

forces fired on protesters in Damascus and the southern city of

Deraa who had requested the release of political prisoners.

These actions have sparked days of violence and bloody revolts

that have spread more and more intensely at national level in

the following months. The United States, the United Kingdom

and France have expressed serious concern about the terrible

human rights situation in Syria, however on this occasion the

Russian delegation declared that it did not want to interfere in

the internal affairs of any sovereign state230 . Faced with the

harsh retaliation by the Syrian government against protests that

have increased throughout the country, on 27 April 2011 the

Security Council held its first session on Syria, in which most

of the delegates expressed their firm condemnation of the grave

human rights violations in Syria 231: the need to help Syria to

prevent further violence and civil suffering has been

emphasized. While China and India have expressed concern

229 U.N. SCOR, 66th Sess., 6520th mtg., U.N. Doc. S/PV.6520 (Apr. 21, 2011)

230 The Crisis in Syria, INT’L COALITION FOR RESP. TO PROTECT,

http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-syria (last visited Mar. 27,

2016).

231 U.N. SCOR, 66th Sess., 6524th mtg., U.N. Doc. S/PV.6524 (Apr. 27, 2011)

159

about the incidents that occur in Syria, Russia has declared that

the current situation in Syria has in no way been a threat to

international peace and security. The declaration, which

stressed the responsibility of the Syrian government to prevent

violence against its own people could not be issued because

there was no agreement between the Member States. In

particular, Russia and Lebanon have objected, stating that such

a press statement would be an undue interference in Syria's

internal affairs. In response to the growing international

deterioration of the human rights situation in Syria, the Human

Rights Council held a special session on April 29, 2011 and

adopted Resolution 16 / 1 232. The resolution condemned the

Syrian government's attacks on the civilian population and

expressed grave concerns over alleged deliberate murders,

arrests and torture of peaceful protesters by Syrian authorities.

The resolution asked the UN High Commissioner for Human

Rights to urgently send a fact-finding mission to investigate

such suspected human rights violations in Syria. Although

resolution 16/1 was adopted by a majority of the votes of the

Human Rights Council, some Member States raised

considerable opposition. China, Russia, Pakistan and Malaysia

expressed their votes against the resolution, while the

delegations of Nigeria and Saudi Arabia abstained. Pursuant to

232 Human Rights Council Res. S-16/1, U.N. Doc. A/HRC/RES/S-16/1 (Apr. 29, 2011).

160

Human Rights Council Resolution 16/1, “the High

Commissioner for Human Rights established a [fact-finding

mission] to investigate all alleged violations of international

human rights law in Syria [. . .] to establish the facts and

circumstances of such violations and of the crimes perpetrated,

with a view to avoiding impunity and ensuring full

accountability.”233. Although no explicit and direct reference

was made to R2P, the same purpose of the fact finding was to

ensure the responsibility of the international community to

prevent further atrocities in Syria. In May 2011 the fact-finding

mission began and the High Commissioner for Human Rights

made a formal request for collaboration with the Syrian

government 234.However, the Syrian government only increased

its repression of the opposition, the Council for human rights

and some UN member states have put more pressure on the

regime in Syria. In the months that followed, the United

Kingdom, the United States, France, Germany and Portugal

made efforts to approve a Security Council resolution

condemning the atrocities of the Syrian government, which,

however, proved to be unsuccessful in the face of the resistance

233 Fact Finding Mission on Syria: Call for Submissions (A/HRC/RES/S-16/1), OFF.

UNITED NATIONS HIGH COMMISSIONER FOR HUM. RTS. (May 24, 2011),

http://www.ohchr.org/EN/Countries/MENARegion/Pages/SyriaFactFindingMission.aspx.

234 OHCHR Fact-Finding Mission to Syria Terms of Reference, OFF. UNITED NATIONS

HIGH COMMISSIONER FOR HUM. RTS. 1– 2 (May 24, 2011),

http://www.ohchr.org/Documents/Countries/SY/TORs_FFM_Syria.pdf.

161

of Russia, China, Brazil, South Africa and India 235. Although

some Member States considered the Syrian crisis an internal

issue, the violence in Syria started to creep across the borders of

Turkey. Furthermore, by the end of 2011 Syrian refugees had

become an international concern: More than 2.5 million

Syrians had fled their homes at the end of 2011, taking refuge in

neighboring countries or within Syria itself. 236Welcoming the

massif influx of refugees was a great effort but also a great

challenge for Syria's neighbors, with serious consequences for

the stability and balance of the whole region. Given the

escalation of violence and other humanitarian problems in

Syria, Francis Deng, Special Advisor to the Secretary General

for the Prevention of Genocide, and Edward Luck, Special

Advisor to the Secretary General for R2P, issued an important

declaration on Syria on 21 July 2011 237. Stressing once again

that the atrocities in Syria amounted to crimes against

humanity, the Special Councilors urged the Syrian government

235 Dan Bilefsky, New Move to Condemn Syria in U.N., N.Y. TIMES (June 8, 2011),

http://www.nytimes.com/2011/06/09/world/middleeast/09nations.html?_r=0; UN

Deadlocked Over Draft Syria Resolution, as Crackdown Continues, Radio Free Eur. Radio

Liberty (June 14, 2011 11:13 AM GMT).

236 See Syrian Refugees: A Snapshot of the Crisis—In the Middle East and Europe,

MIGRATION POL’Y CTR., http://syrianrefugees.eu/ (last updated Oct. 2014).

237 Press Release, Francis Deng & Edward Luck, Special Advisers of the United Nations

Secretary-General, U.N. Press Release (July 21, 2011

162

to fulfill its fundamental responsibility to protect its civilian

populations .In August 2011, after much discussion, the

Security Council adopted a presidential statement expressing

grave concern over the deterioration of the humanitarian

situation in Syria and calls for access without any kind of

obstacle for humanitarian workers238. While reiterating its

strong commitment to the sovereignty, independence and

territorial integrity of Syria, the Security Council also stressed

the importance of a political solution to the conflict. Given the

escalation of violence and unrest in Syria, the League of Arab

States (LAS) issued its first declaration of condemnation on

Syria on August 7, 2011 and called on the Syrian government to

immediately end the violence 239. However, the statement made

no explicit reference to R2P. From the initial violence and the

events that took place in March 2011 until August 2011, the

LAS did not respond to the crisis in Syria: the reason for this

initial silence of the LAS on the crisis situation in Syria was

linked to other regional crises that occurred. in the wake of the

Arab spring, including political instability in Egypt after the

overthrow of Hosni Mubarak and the NATO Libyan operation,

which kept the LAS's focus away from the Syrian crisis.

238 See U.N. SCOR, 66th Sess., 6598th mtg. at 2, U.N. Doc. S/PV.6598 (Aug. 3, 2011).

239 Isabel Coles & Yasmine Saleh, Arab League Expresses Growing Concern About Syria,

REUTERS (Aug 7, 2011, 11:13 AM), http://www.reuters.com/article/2011/08/07/us-syria-

league-idUSTRE7761H720110807.

163

Equally, the Persian Gulf countries were busy with unrest in

Bahrain, Yemen and Saudi Arabia at the time and were

unwilling to take any steps towards Syria. The Independent

International Commission of Inquiry on Syria was established

on 22 August 2011 with Resolution 17 / 1 of the Human Rights

Council. The Commission had the specific task of investigating

all alleged violations of international human rights law in Syria

since March 2011. In October 2011, the United Kingdom,

France, Germany and Portugal presented a project to the

Security Council, proposing an embargo on weapons and

setting up a new sanctions committee . The preamble of the

resolution stressed the primary responsibility of the Syrian

government to protect its population as a primary duty. Russia

added that the situation in Syria cannot be taken into

consideration by the Council security separately and differently

from the Libyan experience and that a similar interpretation of

the Security Council resolutions on Libya should not be a

model for future NATO actions in the implementation of R2P.

Russia suspected that excessive force would also be used in

Syria, as NATO did in Libya. Russia also stressed the

importance of knowing how this particular resolution would be

implemented. They underlined that “a significant number of

Syrians do not agree with the demand for regime change and

would rather see gradual changes, believing that they have to

be implemented while maintaining civil peace and harmony in

the country.” Rice further stated that, in failing to adopt the

164

draft resolution, “the Council [had] squandered an opportunity

to shoulder its responsibilities to the Syrian people,” and “[t]he

crisis in Syria [would] stay before the Security Council, and

[the United States] [would] not rest until the Council [rose] to

meet its responsibilities.”

4.2. A Conflict Without Truce : the Fate of Syria in the

Indecision of the United Nations Members

The LAS, in an extraordinary session in Cairo on 16 October

2011, adopted a resolution "calling for the complete and

immediate cessation of acts of violence and murder and the end

of armed actions" to face the crisis with a further attempt to put

end and prevent further casualties in Syria 240. On 30 October

2011, the SV urged Syria to "stop the bloodshed" in a plan

accepted and signed by Syria on 2 November 2011241. The

action plan urged the Syrian authorities to: terminate all forms

of violence, free political prisoners, withdraw all military

elements from cities and residential neighborhoods and provide

240 League of Arab States Res. 7435, ¶ 1 (Oct. 16, 2011).

241 Timeline of International Response to the Situation in Syria, GLOBAL CTR. FOR

RESP. TO PROTECT 9, http://www.globalr2p.org/media/files/timeline-of-international-

response-to-syria-27.pdf (last visited Mar. 28, 2016).

165

free access to LAS agencies and international media to report

on developments and monitor the situation . However, the

Syrian regime was not ready and did not immediately accept the

proposals made by the LAS. This deliberate inaction by the

Assad regime has in turn caused problems and sparked debates

on the need for measures against Syria. Meanwhile, the

Commission of Inquiry, established by the Human Rights

Council under Resolution S-17/1, has completed its task and

prepared its first report on November 23, 2011. The report

concluded that the armed forces and Syrian security had

committed human rights violations since the protests began in

March 2011. The report also stated that crimes against

humanity had been committed in various places in Syria during

this period.

The Security Council again discussed the Syrian situation on 12

December 2011. During this meeting, Navi Pillay, United

Nations High Commissioner for Human Rights, reported a

disastrous budget, declaring that around 5,000 people had been

killed in Syria since March 2011 and that many other civilians

had been arrested and detained without any trial 242.He

continued, noting that some 12,000 refugees fled from Syria

242 Press Release, United Nations High Comm’r for Human Rights, Syria: Pillay Calls for

Urgent Action to Halt Violence (Dec. 12, 2011),

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11705&LangID=

E

[https://web.archive.org/web/20150404170310/http://www.ohchr.org/en/NewsEvents/Pages

/DisplayNews.aspx?Ne wsID=11705&LangID=E].

166

and many others were internally displaced. He stressed that the

Syrian government failed to support its responsibility to protect

Syrian civilian populations and that it would then be the task of

the international community to intervene and take effective

measures to protect the civilian population in Syria. At the end

of January 2012, the LAS recognized its failure in the peace

efforts in Syria and declared that the Syrian regime failed to

cooperate with the LAS 243. Given the continuing violence in

Syria, the LAS reported this situation to the United Nations and

presented a peace plan that invited Assad to renounce and hand

over power to his deputy 244. With the exception of Lebanon,

this plan was supported by several other Arab countries .

However, while all these negotiation attempts were in cors, the

violence in Syria did not stop, rather it continued and, again, the

UN member states made another attempt at the end of January

2012 to address the crisis. Syrian. During a discussion by the

Security Council on the LAS peace plan, Morocco introduced a

draft resolution under which the Security Council would fully

243 Peter Cave, Saudi Arabia Says Arab League Observers Have Failed in Syria, ABC

News (Jan. 23, 2012, 8:15 AM), http://www.abc.net.au/am/content/2012/s3413174.htm.

244 Yasmine Saleh & Lin Noueihed, Arab League Proposes New Plan for Syrian Transition,

REUTERS (Jan. 22, 2012, 6:16 PM EST), http://www.reuters.com/article/2012/01/22/us-

syria-idUSTRE8041A820120122.

167

support the LAS proposal 245. The draft resolution included the

LAS objective of forming a new national unity government,

which required Assad to step back as part of a democratic

transition process, then grant full authority to his deputy and

hold free elections under Arab and international supervision 246.

In light of the successful mediation efforts in Kenya, Kofi

Annan was named joint UN-LAS special envoy for Syria on

February 23, 2012. "Special envoy [had to] provide good

offices to end all violence and violations human rights, and

promote a peaceful solution to the Syrian crisis. " 247. The

special envoy was guided in this effort by the provisions of

General Assembly resolution A / RES / 66/253 and by the

relevant resolutions LAS. In making the functions as a special

envoy, Annan consulted Member States and "engage [d] with

all relevant [parties] within and outside Syria in order to end

[mass atrocities] and the humanitarian crisis" in Siria.

245 U.N. SCOR, 67th Sess., 6710th mtg., U.N. Doc. S/PV.6710, at 2 (Jan. 31, 2012); Neil

MacFarquhar, U.N. Tentatively Backs a Plan for Syria, N.Y. TIMES (Feb. 2, 2012),

http://www.nytimes.com/2012/02/03/world/middleeast/diplomats-at-united-nations-work-

on-revisions-to-syria- resolution.html?_r=0.

246 Sec. Council, Security Council Fails to Adopt Draft Resolution on Syria as Russian

Federation, China Veto Text Supporting Arab League’s Proposed Peace Plan Security

Council, U.N. Press Release SC/10536 (Feb. 4, 2012) [hereinafter Security Council Fails to

Adopt Draft Resolution].

247 Press Release, Sec’y-Gen., Kofi Annan Appointed Joint Special Envoy of United

Nations, League of Arab States on Syrian Crisis, U.N. Press Release SG/SM/14124 (Feb.

23, 2012).

168

The Commission of Inquiry, established under Resolution S-

17/1 on the situation in Syria, presented its second report to the

Human Rights Council on February 22, 2012.The report

concluded that the Syrian government had "manifestly failed in

the his responsibility to protect [his people] ". Since November

2011, Syrian forces have committed more "widespread,

systematic and serious" human rights violations. 248 .

In light of the continuing escalation of violence in Syria, the

president of the Security Council released a statement on March

21, 2012, reiterating the deteriorating humanitarian situation in

Syria and asking Damascus to grant access to the

undersecretary general for humanitarian affairs and the

emergency aid coordinator . In light of this statement by the

president of the Security Council, UN Secretary-General Ban

Ki-moon expressed the hope that this development will mark a

turning point in the international community's response to the

crisis Syrian.249 On 14 April 2012, the Security Council

unanimously adopted resolution 2042, which underlined the

primary responsibility of the Syrian government to protect its

population and authorized the deployment "of up to 30 unarmed

248 Human Rights Council, Rep. of the Commission of Inquiry on the Syrian Arab

Republic, UN Doc. A/HRC/19/69 (Feb. 22, 2012).

249 U.N. Secretary-General, Statement Attributable to the Spokesperson for the Secretary-

General on Syria (Mar. 21, 2012), http://www.un.org/sg/statements/index.asp?nid=5934.

169

military observers [ in Syria] to maintain contact with the

parties and start reporting on implementation of a complete

cessation of armed violence in all its forms by all parties,

pending the deployment of the mission”.250

On 7 June 2012, Annan informed the Security Council of the

progressive and inexorable deterioration of the situation in

Syria and, on 15 June 2012, UNSMIS suspended its activities.

Following Annan's report to the Security Council, the Russia

suggested a conference to establish a contact group on Syria.

251On 19 July 2012, a draft resolution under Chapter VII of the

UN Charter was presented to the Security Council, sponsored

by France, Germany, Portugal, United Kingdom and United

States. The resolution further emphasized to the Syrian

government its primary responsibility to protect the population

and prevent atrocities. It also authorized the Security Council to

act under Chapter VII of the UN Charter to request the

verifiable conformity within ten days of the adoption of

resolution.On September 19, 2013, in light of the accusations of

possession and use of chemical weapons by the Syrian regime,

250 S.C. Res. 2042, U.N. Doc. S/RES/ 2042, ¶ 7 (Apr. 14, 2012).

251 Press Release, Kofi Annan Found., Remarks to the UN General Assembly by Joint

Special Envoy for Syria Kofi Annan (June 7, 2012),

http://kofiannanfoundation.org/newsroom/press/2012/06/remarks-to-general-assembly-

joint- special-envoy-syria-kofi-annan

[https://web.archive.org/web/20120610012650/http://kofiannanfoundation.org/newsroom/p

ress/2012/06/remarks- to-general-assembly-joint-special-envoy-syria-kofi-annan].

170

Russia and the United States have transmitted to the Security

Council their framework for the elimination of Syrian chemical

weapons agreed in Geneva on September 14, 2013. In

particular, the resolution prohibited Syria from "using us ,

develop [produce], produce [ing], otherwise acquire [ing],

store [ing] or conserve [ing] chemical weapons or transfer

[sound]. . . to other states or non-state actors ", and also

stressed" that no part in Syria should use, develop, produce,

acquire, store, preserve or transfer such weapons. ".252

However, Resolution 2118 does not mention the international

community and the its consequent responsibility to protect the

Syrian population from mass atrocities, but refers exclusively to

the threat to international peace and security represented by the

possession and use of chemical weapons by Syria.

Secretary-General Ban Ki-Moon saw the resolution pass as "the

first news of hope about Syria for a long time".253 However, he

noted, however, that "even in the midst of this important step"

we must never forget that the catalog of horrors in Syria

continues with bombs and tanks, grenades and pistols. "He said

252 Letter dated 19 September 2013 from the Permanent Representatives of the Russian

Federation and the United States of America to the United Nations addressed to the

Secretary-General, U.N. Doc. A/68/398–S/2013/565, at 1 (Sept. 24, 2013).

253 Press Release, Sec. Council, Security Council Requires Scheduled Destruction of Syria’s

Chemical Weapons, Unanimously Adopting Resolution 2118 (2013), UN Press Release

SC/11135 (Sept. 27, 2013).

171

Syria's plan to eliminate chemical weapons was not" a license

to kill with conventional weapons ". Ki-moon also pointed out

that those responsible for the chemical attacks in Syria should

be brought to justice and declared that a United Nations mission

had returned to Syria to complete its investigations.

In the debate following Resolution 2118, the member states of

the Security Council "praised the text for imposing binding

obligations... The al-Assad regime, [requiring] the [regime] to

get rid of its" instruments of terror " . "192 US Secretary of

State Kerry stated that the Assad regime" brought the burden of

respecting the terms of the resolution "254. Despite the efforts of

the international community, violence continued throughout

Syria. Helicopter bombardment was reported in the city of Kafr

Zeita in central Hama province in February 2014. "Bombing in

eastern Ghouta on the outskirts of Damascus, in the city of

Mleiha, was also reported..At the end of 2014, hundreds of

thousands of Syrian civilians have fled from rebel parts of the

city of Aleppo under heavy aerial bombardment by the Syrian

government, which has created one of the largest refugee flows

in the entire civil war.209 Even today, unrest continues in

Syria. Thousands of civilians are fleeing Syria. Some fight for

their lives in the midst of the seas while others die before

254 Syria Army Captures Village in Hama Province, AL JAZEERA (Feb. 18, 2014),

http://www.aljazeera.com/news/middleeast/2014/02/syria-army-captures-village-hama-

province- 201421843521885341.html.

172

reaching their destinations.” 255The Syrian refugee crisis has

been widely discussed in recent years and many countries have

agreed and accepted many refugees.

4.3 The Type of Syrian Conflict and the Implications of its

Legal Classification on the Application of the Principle

of Humanitarian Access

The Syrian question as set out in the third chapter demonstrates

that the path of research into the effects of the interaction

between human rights and humanitarian law is not addressed to

the mere regulation of the law of armed conflict. This process

has a more general objective, or the legal balance of the

international community. As historical events have been shown,

the principle of humanity determines the the use of force,

making it possible for the regulation of the phenomenon of war

by specific means is necessary pillars and, in particular, the

articulation of humanitarian law as natural evolution of the law

of peoples. In this sense, the doctrine of military necessity is

another fundamental principle, to regulate and contain the

255 Amateur Video Said to Show Syrian Army Tank Attacked, TELEGRAPH (Feb. 17,

2014, 10:47 PM

GMT),http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10645233/Amateur-

video-said-to-show-Syrian- Army-tank-attacked.html.

173

arbitrary use of force. This type of principle reach a mutual

dialectical compromise, aimed at balancing and suppressing the

arbitrary use of force of war, through a relationship of

interaction between human rights and law humanitarian. During

the various phases of the Syrian crisis, the traditional tension

between the classical principle of effectiveness and that of

legality or of the democratic legitimacy that characterises the

contemporary phase of international relations. The "hybrid"

nature of the Syrian conflict also makes the application of

certain principles of international law problematic humanitarian

as well as reiterating the topicality of the issue - remained rather

"fluid" in international law and in the practice of the United

Nations - on the relationship between the recognition of the

right of peoples to self-determination and the principle of

respect for the rule of law and the rule of law and the rule of

lawsovereignty and territorial integrity of states. A challenge

that has proved to be particularly difficult to The aim of

winning is to identify the necessary balance between the new

duties and responsibilities of protection for civilian populations

or for the protection of human dignity and fundamental rights,

imposed by norms and principles that have developed since the

second half of the last century. These are flanked and

contrasted with the obligations arising from traditional and

consolidated rules of international law, relating in particular to

the prohibition of the unilateral use of force, non-intervention

174

and, again once, to the safeguarding of the territorial

sovereignty of states.

In the Syrian scenario, the violence against the civilian

population objectively caused an unprecedented humanitarian

catastrophe. The legal qualification of the conflict or the

establishment of more than one category of conflict must take

into account the conditions of the civilians, who are tortured

regardless of the definitions. This concept would lead to the

conclusion that the coalition's interventions, both in anti-Isis

and against the Assad regime, are to be considered justifiable

from a humanitarian point of view. The use of chemical

weapons is just one of many cases of human rights violations.

Of course, with thousands of deaths and more than seven

million refugees, it is not appropriate to look for a cause that

can only be attributed to government forces. Different armed

groups and international actors operate on the territory. Reports

from the Commission of Inquiry set up by the Human Rights

Council highlight security of the civilian population is also

constantly put at risk by the attacks on the population aircraft

and military activities of the States which over the years have

intervened. The number of military actions in Syria is

increasing, whether through military action on the ground, in

support of the Syrian regime (such as Russia) or in support of

organized opposition, or through the provision of logistical,

material or financial support to the various armed groups.

Whatever the basis for the legitimation of such interventions

175

and whatever the reason is the method of implementation, there

is no doubt, however, that the States which carry them out have

an obligation to respect and ensure that all "actors" respect.

The Commission has also taken note of the fact that the Geneva

Conventions of 1949 have not yet been ratified by the parties

involved and that the rules and principles of humanitarian law

are enshrined in the four Geneva Conventions of 1949. It is

precisely in relation to these provisions that certain standards

must always be respected in all circumstances, including in the

case of non-international armed conflicts which have occurred

in the past they carry out on their territory.

It should also be recalled that the obligation to respect and

ensure respect for these minimum principles of humanitarian

law implies, in particular, that a Party shall refrains from

providing aid or assistance to another State where there is a

reasonable expectation based on the previous conduct of that

other State, that the latter may, thanks to the help received,

commit an infringement humanitarian law or a war crime or

gross violations of human rights human rights. Reports of the

Committee of Inquiry into Crimes and Gross Violations human

rights in Syria, as already mentioned, have established that

Syrian government forces have used chemical weapons in a

number of circumstances in attacks on the civilian population,

classifying this conduct as crimes of war. Despite the

Commission's repeated complaints and appeals to the Council

176

was not in a position to adopt any resolution, even if implicitly

containing a condemnation of the Syrian Government for its

proven use of chemical weapons or for other conduct that could

be qualified as international crimes, because of the veto of some

permanent Members. A project of resolution on the referral of

the situation in Syria to the Criminal Court on the basis of

Article 13 of the Rome Statute, which was submitted to the

2014 under consideration in the Council by a large number of

states, was blocked the Russian and Chinese vetoes; this,

despite the fact that the proposed tension expressly excluded the

conduct of citizens, the military and others from the jurisdiction

of the criminal court personnel of States, other than Syria,

which were not parties to the Statute of Rome.

4.4 Historical Antecedents: Similarities and Differences with

the Syrian Case

Comparing the situation in Syria with historical precedents in

the application of humanitarian law is very difficult. In

particular, difficulty lies above all in the acknowledgement that

the Syrian conflict is changing its characteristics also because of

the interventions of different States. The reason for the

interventions also changes. If before the use of chemical

177

weapons and the actual detection of human rights violations, the

interventions of Russia and the Coalition hit the Isis, after the

use of chemical weapons and therefore also the unilateral

intervention of the United States of America, the legal

conditions have changed. Moreover, we have moved on from

the application, even if much debated, of Article 51 of the

United Nations Charter, for example, to the humanitarian

justification of interventions.

If we want to make a comparison between the Syrian case and

the historical precedents that characterized it, we must point out

that the "humanitarian" intervention in Kosovo was the first

case, in which the States used, an extensive construction of the

unilateral intervention model provided for through collective

self-protection by Article 51 of the Charter. These measures

were taken in response not to an armed attack, but to a serious

and large-scale violation of human rights. We are reporting on

what was said in Resolution 1203 (1998) by the Security

Council itself, which spoke of a "humanitarian catastrophe". In

international law studies256, attempts to justify intervention are

based on more classical considerations. However, it is

significant that, almost twenty years later, <<the intervention is

currently considered completely legitimate by some authors

who refer to the doctrine of the so-called responsibility to

256 VERLAGE, Responsibility to Protect, Tübingen, 2009, p. 269 ss.

178

protect. We are referring to a doctrine which, despite its

dubious value on a strictly positive level, indirectly proposes to

protect, by means of an autonomous regulatory approach, but in

line with what we have said, many collective values of the

international community pursued by the production standards of

erga omnes obligations>>257.

Further comparisons in the Syrian case can certainly be made

with interventions in Afghanistan and Iraq. In particular, for

Afghanistan, the intervention was carried out by the American

and British forces (with the limited logistical and military aid of

other States, but with the consent, in practice, of all) in response

to the terrorist attack on the two Twin Towers of New York on

11 September 2001. The attack began on October 7, 2001 with

the well-known operation "Enduring Freedom", which resulted

in a military protection and occupation of Afghan territory. This

operation was never explicitly authorized by the Security

Council. The UN in this case assumed a position that we can

certainly consider halfway, and such as not to be able in any

way to be considered exhaustive. In fact, Resolution 1368

(2001) did no more than recognize that the "terrorist attacks"

suffered by the United States constituted a "threat to peace".

This threat also enabled the use of the natural right of legitimate

individual and collective defence under Article 51 of the UN

Charter.

257 PICONE P., L’insostenibile leggerezza dell’articolo 51 della Carta dell’Onu, in Riv Dir

Int., 2016, p. 7

179

In this perspective, recourse to self-defence was necessary in

order to delegate the management of the entire case to the

United States. This operation of constitutional engineering was

therefore carried out without worrying about the fact that it was

in contrast with the traditional interpretation, traceable to the

Charter, of art. 51. The provision was in fact used to combat a

practice, terrorism, which is certainly contrary to the founding

values of the international community. With this intervention,

the possibility remains definitively acquired, for the evolution

of the legitimate defence, that, at least under certain conditions,

the "armed attack" against which one can react has been put in

place by non-state actors.

4.5 An endless succession of interventions with conflicting

aims

Analysing the different phases of the Syrian conflict and

therefore wanting to interpret the interventions also in the light

of the typical principles of humanitarian law and therefore of

the responsibility to protect, conflicting facts emerge. The

contrasts lurk because of the succession of different

180

interventions, with different motivations and conducted by

perhaps different258.

As far as Russia is concerned, which intervened at a certain

moment in the conflict, alongside al-Assad's Syria, the

prevailing opinion is that such an intervention would be based

on a sort of explicit request on the part of the Government in

question259.

This type of reflection serves to justify the double and

simultaneous defence of the Government by Russia. Defense

that has been criticized by the United States and other Western

States.

As regards the attack by the States of Coalition that bombards

the forces of ISIS on Syria's soil from above, the justification

for such behaviour should be found in collective self-protection,

based, however, in that case, on the paradigm of the state

"unwilling or unable" to react. In practice, it is believed, that the

Coalition States most involved in the war against ISIS would

act in Iraq (which also attempts to combat the phenomenon with

its own national army) on the basis of the principle of collective

self-defence, while conducting, as the criterion considered,

military operations (from above or on the ground) also in Syria.

This type of explanation is not very detailed. Authoritative

258 WELLER,Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the

Right to Self Defence Against Designated Terrorist Groups, EJIL: Talk!, www.ejiltalk.org,

26 novembre 2015

259 MILANOVIC M, “The Clearly Illegal US Strike in Syria”, in EJIL:Talk!, 7 aprile 2017,

di- sponibile su www.ejiltalk.org, p. 14 e ss.

181

studies have criticized the use of this last criterion, claiming the

opposition to it of various States, and the silence of many

others, politically linked and therefore subordinate to the United

States260.

The truth is, in fact, that an extensive interpretation of the type

indicated could not fail to affect the architecture and

functioning of the United Nations' collective security system,

opening an even greater door to the traditional difficulties and

uncertainties of application of Article 51, and to the unrestricted

prevalence of unilateralism within the system itself261.

It should also be stressed that, in relation to humanitarian law,

strong doubts and, in any case, a kind of illegitimacy should be

expressed even after the unilateral attack by the United States of

America in 2017. The US position is not much more articulated

when referring to the Security Council debates on armed

intervention against the Syrian air base. The most interesting

thing here is the particular perspective in which the US

initiative is placed. In the absence of an effective reaction from

the international community, states would be entitled to

intervene unilaterally: "when the international community

consistently fails in its duty to act col- lectively, there are times

when states are compelled to take their own action. The

260 PICONE P., L’insostenibile leggerezza dell’articolo 51 della Carta dell’Onu, in Riv Dir

Int., 2016, p. 7

261 PICONE P,Il ruolo dello Stato leso nelle reazioni collettive alle violazioni di obblighi

erga omnes, in Riv. Dir. Int., 2012,II, p. 859 e ss.

182

indiscriminate use of chemical weapons against innocent

civilians is one of those times."262

Reconstructing the intervention of the United States from the

point of view of humanitarian law means noting that the idea of

linking US action to the need to put an end to a humanitarian

emergency situation is particularly clear from the statements

made by the British representative in the Security Council, who

states that 'The United Kingdom supports the United States air

strikes on the Al-Shayrat air field because war crimes have

consequences'263. The United States strike was a proportionate

response to unspeakable acts that gave rise to overwhelming

humanitarian distress264. The latter references closely recall the

reasons already put forward by some Western states during the

previous crisis that occurred in August 2013, when the use of

chemical weapons by the Syrian government in some districts

of Damascus had caused a large number of civilian casualties.

On that occasion, a note <<issued by the United Kingdom

indicated in the doctrine of humanitarian intervention the legal

basis for armed action, conducted unilaterally and aimed at

ending the humanitarian emergency and discouraging the

further use of chemical weapons by the Syrian side. On that

262 UN Doc. S/PV.7919

263 Consiglio di Sicurezza, UN Doc. S/PV.7919, cit., p. 5

264 LEDERMAN M, “My Discrete but Important Disagreement with Harold Koh on the

Lawfulness of the Strikes on Syria”, in Just Security, 7 aprile 2017, disponibile su

www.justsecurity.org., p. 58 e ss.

183

occasion, only the adoption of Security Council Resolution no.

2218 (2013) of 27 September 2013, which established a

complex regime for the control and destruction of chemical

arsenals in the possession of the Syrian government, had

prevented the armed action of Western states>>265.

4.6 Application of "just war" requirements to the Syrian case

Within the context of humanitarian intervention, the state

emergency is considered to be a phenomenon responsible for

the state of exception, based on a negative legal system,

concerning the "non application' of standards. In the light of this

legal model, it would create a parallel system, i.e. the

hypothesis of a control mechanism alternative to the ordinary,

which legitimises any exceptionality, making it a "normal"

instrument266. The question arises as to whether it is desirable a

repression of the state of emergency, considering it to be a

prejudicial system in its entirety, or if necessary design a

parallel legal system, considering possible and, it would even be

desirable to limit this phenomenon to a single area conventional

legal model (jus ad tumultum and jus in tumultu). It must also

265 ARCARI M., La risposta statunitense all’uso di armi chimiche in Siria e la confusione

delle categorie dello ius ad bellum, Diritti umani e diritto internazionale, 2017, II, p. 378 e

ss.

266 BIANCHI A, “The International Regulation of the Use of Force: The Politics of

Interpre- tive Method”, in Leiden Journal of International Law 2009, p. 651 ss., p. 671

184

be said that the inability of the international community to

consider the individual always and only as such, avoiding any

possible social-legal qualification functional to a historical or

political phenomenon has led to the emergence of legal

principles and rules, in particular in the international

conventional law. In that regard, it is not wrong to maintain the

right to international humanitarian law as a legal instrument for

the recognition of a legal subjectivity of the individual,

precisely because of the limits of the imposed on States in the

conduct of a phenomenon of war, despite the fact that there are,

at the same time, limits to the legal protection proposed in this

respect the qualification of the individual for the purposes of his

or her protection267.

By focusing on the responsibility to react, which is

unquestionably the heart of the report, humanitarian

intervention - including preventive intervention - is only

allowed in "extreme cases", if peaceful measures prove

insufficient. An example is provided when China and Russia

were opposed to any kind of intervention against the Syrian

regime, while on the contrary ,the United Kingdom, the United

States and their allies were in favor of the use of force in Syria.

The United States, the United Kingdom and France threatened

Syria with the use of unilateral force only after the Syrian attack

on chemical weapons in August 2013. Although the United

267 LEDERMAN M, “My Discrete but Important Disagreement with Harold Koh on the

Lawfulness of the Strikes on Syria”, in Just Security, 7 aprile 2017, disponibile su

www.justsecurity.org., p. 58 e ss.

185

States and the United Kingdom have threatened Syria with a

possible use of unilateral force, neither country justified their

requests for intervention in Syria on the basis of R2P. Both

countries justified their commitment to use unilateral military

force against Syria based on Syria's use of chemical weapons.

The United Kingdom has threatened the Assad regime with the

use of unilateral force to stop the use and production of

chemical weapons and protect the civilian population. They

justified their decision on humanitarian intervention without

referring to R2P. The legal position on the United Kingdom's

military action against Syria is set out in a note from the

government dated 29 August 2013: under the doctrine of

humanitarian intervention it would be lawful for the United

Kingdom to use force against another state without a Council

resolution security authorizing the use of force, if the Security

Council cannot agree to authorize the use force and if other

conditions are met. The document goes on to list three

conditions that should be met:

(i) there is convincing evidence, generally accepted by the

international community as a whole, of extreme humanitarian distress

on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative

to the use of force if lives are to be saved;

(iii) the proposed use of force must be necessary and proportionate to

the aim of relief of humanitarian need and must be strictly limited in

time and scope to this aim.

186

On January 14, 2014, the UK Office for Foreign Affairs and the

Commonwealth presented an official response to questions

posed by the Foreign Affairs Committee of the House of

Commons on the legality of humanitarian intervention without

authorization from the Security Council.268 This document

resulted in a sort of reconciliation with the British and R2P

legal position as reflected in the 2005 World Summit Results

document.269 As noted by Goodman, the document highlighted

three related positions:

1. R2P and the 2005 World Outcome Document involve political

commitments aimed at the Security Council taking action;

2. R2P as set out in the 2005 World Summit Outcome Document does not address the question of unilateral State action in the face of an

overwhelming humanitarian catastrophe; and

3. Unilateral humanitarian intervention is a lawful option when the

Security Council fails to take action to stop an overwhelming

humanitarian catastrophe.

Harold Koh agrees with former British legal adviser Sir Daniel

Bethlehem, who said that "[i] in the case of the law on

268HughRobertson,FurtherSupplementaryWrittenEvidencefromtheRt.Hon.RobertsonMP,Mi

nisterofState,Foreign and Commonwealth Office: Humanitarian Intervention and the

Responsibility to Protect, JUSTSECURITY.ORG (Jan. 14, 2014),

http://justsecurity.org/wp-content/uploads/2014/01/Letter-from-UK-Foreign-

Commonwealth-Office-to-the- House-of-Commons-Foreign-Affairs-Committee-on-

Humanitarian-Intervention-and-the-Responsibility-to- Protect.pdf.

269 Ryan Goodman, UK Government Issues Major Statement on Legality of Humanitarian Intervention, JUSTSECURITY.ORG (Jan. 30, 2014, 8:44 PM),

https://www.justsecurity.org/6583/uk-government-issues-major- statement-legality-

humanitarian-intervention/.

187

humanitarian intervention, an analysis that is based simply on

the prohibition of the threat or use of force referred to in Article

2, paragraph 4 of the Charter of the United Nations and the

related principles concerning non-intervention and sovereignty,

it is ... excessively simplistic. "This evidence occurs in the case

of human rights violations of such a magnitude that they

"genuinely shock the conscience of mankind". All on condition

that six points are respected: just cause, right intention,

legitimate authority, extrema ratio, proportionality and

prospects of success” 269

It has been noted several times that the proposed conditions

correspond quite faithfully to those of the Christian theological

tradition of just warfare. No one doubts “that these are more

than reasonable principles, but one wonders whether

reasonableness is sufficient to conclude that conduct is

permitted under international law. It must be acknowledged

that the real problem is not about the conditions understood in

general terms, but about the concrete way in which those

conditions are interpreted”270.

However, although Article 2, paragraph 4, and Article 24,

paragraph 1, of the Charter give the Security Council the

responsibility to act in cases where there is a threat to

international peace and security, the Charter does not respond to

the question whether a group of states with real and justified

270 FOCARELLI C., La dottrina della responsabilità di proteggere e l’intervento umanitario,

in Riv. Dir. Int., 2008,II, p. 317 e ss

188

humanitarian reasons can act collectively with civil protection

in cases where the Security Council does not take effective

measures to protect civilian populations from mass atrocities.

The United States and the United Kingdom have maintained the

open option for humanitarian purposes without the approval of

the Security Council. After the Syrian attack on chemical

weapons in August 2013, these countries also adopted an

approach similar to the Syrian crisis. Therefore, in Syria, even

without a Security Council resolution, the United States, the

United Kingdom and France openly declared their willingness

to take military action against the Assad regime, even without a

Security Council resolution authorizing it 271. However,

regardless of whether the authorization of the Security Council

was necessary to intervene and protect the civilian population in

Syria, the use of chemical weapons should not have been the

determining factor of the whole affair. The attention of the

international community was on chemical weapons and this

approach has undermined the response to other serious crimes

that have continued throughout the period in Syria.

It may well be that in medieval Christian Europe the

requirements of the just war were placed in a social and cultural

271

USReadytoLaunchSyriaStrikeSaysChuckHagel,BBC(Aug.27,2013),http://www.bbc.com/ne

ws/world-us-canada- 23847839; Tim Ross & Ben Farmer, Navy Ready to Launch First Strike on Syria, TELEGRAPH (Aug. 25, 2013, 10:00 PM EST),

http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10265765/Navy-ready-to-

launch-first-strike- on-Syria.html.

189

context so homogeneous as to produce predictable and

generally accepted concrete results, but today's world does not

appear so homogeneous and the same principle can lead in

practice to very different results272.

The criterion of just cause has been interpreted by the

Commission (ICISS, International Commission on intervention

and State Sovereignty) as meaning that military intervention is

admissible only in two extremely serious cases (mass killings,

with or without genocidal intent, and large-scale ethnic

cleansing) The Commission has also taken note of the fact that

the Commission has not yet taken any action in response to

other types of human rights violations273.

The problem is that from the generic concept of just cause we

can also arrive at other solutions, more or less inclusive. The

same could be said of the intervention aimed at re-establishing a

democratically elected government, which in the report is

excluded from the responsibility to protect because it would

exceed the requirement of just intention. On the other hand, if

the concepts of just cause and right intention are too

indeterminate and can lead with equal plausibility to different

solutions, the problem arises of how to determine them more

and here the problem of promotion becomes legal.

272 BIANCHI A, “The International Regulation of the Use of Force: The Politics of

Interpre- tive Method”, in Leiden Journal of International Law 2009, p. 651 ss., p. 671

273 FOCARELLI C., La dottrina della responsabilità di proteggere e l’intervento umanitario,

in Riv. Dir. Int., 2008,II, p. 317 e ss.

190

4.7 Operations in Syria and the problems of qualification of armed

conflicts

In the case of Syria the armed conflict between government

forces (including militias) and rebels has made the application

of international humanitarian law. A humanitarian law whose

application over the years has never produced unequivocal

reflections. Humanitarian intervention and in any case the

application of the principle of responsibility-based intervention

to protect applies when all parties to the conflict do not protect

civilians274.

The main problem must be substantially sought acknowledging

that any civilian death is not a violation of international

humanitarian law. The parties can attack military targets,

including enemy fighters and weapons depots, but also civil

constructions and infrastructure used by enemy forces. Civilians

taking "a direct share in the hostilities" may be affected for the

period they have joined in the fight, including civilian leaders

who command the forces. At the same time, fighters who have

been knocked out, captured or surrendered have the right to be

protected from attack. In this regard, international humanitarian

274 LEDERMAN M, “My Discrete but Important Disagreement with Harold Koh on the

Lawfulness of the Strikes on Syria”, in Just Security, 7 aprile 2017, disponibile su

www.justsecurity.org., p. 58 e ss.

191

law does not limit itself to prohibiting attacks on civilians, but

also indiscriminate offensives, those who do not want or cannot

distinguish between military and civilian objectives. This can

happen when the raids are not aimed at hitting military targets,

or when the particular range of weapons is substantially

indiscriminate, as happens in very populated areas. Assaults

must always provide that the loss of civilian life or damage to

civilian property is not disproportionate to the expected military

advantage275. The treatment of prisoners is also important for

International Humanitarian Law. The application of this

specific legislation is too often overlooked, as personal feelings

towards the enemy that have nothing to do with impartial

justice come into play. Both international humanitarian law and

international law place particular emphasis on human rights and

therefore lay down standards to protect detainees from all forms

of execution, torture or other abuse. The fundamental principles

of human rights also apply during real emergencies, while the

legal requirements for detention are examined by the

jurisdiction and submitted to the competent authority. The

competent authorities act because applying the rules of war

crimes and prosecuting those who commit them is vital,

because they are carried out by people with criminal intent. It is

not only the fighters who carry out these crimes who are to

blame, but also those who help them and are their accomplices,

those who give orders or simply watch these acts. The

275 BIANCHI A, “The International Regulation of the Use of Force: The Politics of

Interpre- tive Method”, in Leiden Journal of International Law 2009, p. 651 ss., p. 671

192

qualification of the Syrian conflict is a very complex exercise,

especially with regard to the application of international

humanitarian law as regards the application of the principles to

which we referred earlier. As also concluded by the UN

Commission of Inquiry on Syria (report A/HRC/21/50), the

phase of civil war took place between the end of July 2011,

when to defend the street demonstrations they were flanked by

an armed opposition, the Free Syrian Army (FSA), and 2012. In

this period the legal requirements for the existence of a civil

war were there276. But since 2012, things have changed

radically, both among the rebel front and among the

governmental front. It is enough, therefore, to look at the

countless nationalities and armies of third countries engaged in

various capacities in the conflict to understand that it is no

longer possible to speak of a civil war. The Syrian conflict

appears to be what in practice (although not yet codified) is

defined as "war by proxy", proxy war, or "internationalized"

conflict. In this conflict, in addition to the belligerence between

the government and the rebels, there is a conflict between

Coalition and ISIS, Russia, Turkey and Kurdish militias YPG,

between rebels and ISIS, occasional Israeli aerial

bombardments to military targets on Syrian territory and so far

two U.S. military operations against Syrian military targets.

276 BARTOLINI G., Gli attacchi aerei in Siria, l’operazione Inherent Resolve e la

complessa applicazione del diritto internazionale umanitario, in Dir. Um. e dir.

internazionale, 2017,II p. 400 e ss.

193

With regard to the US attack of 7 April, the first problem is that

of its possible subjection to international humanitarian law, that

is, whether this military action can be qualified as an armed

conflict and, secondly, to what type it can be attributed. It is

obvious that in the context in question, because of the military

opposition between the United States and Syria, the relevant

hypothesis is provided by the notion of international armed

conflict expressed in Article 2 common to the Geneva

Conventions of 1949. This term, although not clearly de-

finished in the tactical discipline, has nevertheless given rise to

substantially agreed solutions in doctrine and practice, as can be

seen in the new Commentary prepared by the CICR in 2016.

The limited nature of this specific US action, similar to the most

recent bombardments of pro-regime forces to inhibit their

movement in a de confliction zone or to the shooting down of

Syrian military aircraft, allows us in particular to dwell on one

of the few controversial elements, that is, the possible need that

armed hostilities between two or more States must be

characterized by requirements of intensity or duration of a

relevant nature in order to be characterized as an international

armed conflict277. The attack conducted by the United States on

7 April 2017, however, represents only a small portion of the

military activities developed by a growing number of states in

277 BIANCHI A, “The International Regulation of the Use of Force: The Politics of

Interpre- tive Method”, in Leiden Journal of International Law 2009, p. 651 ss., p. 671

194

the territories of Syria and Iraq in recent years278. With regard to

the military activities related to Inherent Resolve in the Syrian

territory from September 2014, however, there is no doubt that

the problems related to their qualification are very complicated.

Alongside the Syrian question, therefore, there is a coalition

fight, within another state, with a group of fighters active in the

whole of this state. The qualification of the conflict is very

complicated279.

The main argument supporting the framing of these war

activities within the framework of the discipline of non-

international armed conflicts is provided by the nature of the

actors involved. Since the actions are directed against an

organised armed group, rather than against a State, many

authors believe that the identity of the parties to the conflict

would be of absolute importance, regardless of the fact that, in

order to strike these organised armed groups, it is necessary to

intervene in the territory of another State. This solution, which

has also been taken up by the International Criminal Court, is

reflected in the new Commentary on the Common Article 3. In

this, in several sections, it is stressed that, in operations against

organised armed groups present in other States, relations

between non-state entities and the non-territorial State are

278 BARTOLINI G., Gli attacchi aerei in Siria, l’operazione Inherent Resolve e la

complessa applicazione del diritto internazionale umanitario, in Dir. Um. e dir.

internazionale, 2017,II p. 400 e ss.

279 KOH H.H., “The War Powers and Humanitarian Interven- tion”, in Houston Law

Review 2016, p. 971 ss

195

governed by the regime of non-international armed conflicts. In

particular, for the ICRC scenario if the non-State armed group

does not act on behalf of the second State, it is conceivable that

the confrontation between the first State and the non-State

armed group should be regarded as a non-international armed

conflict. At the same time, due to the evaluations introduced by

the ICRC in the new Commentary, it is necessary to evaluate a

separate interpretative problem, which has so far been scarcely

examined. In particular, it is necessary to analyse the possibility

of considering that actions carried out against an armed group

organised in the territory of another State may, in any case, lead

to the emergence of an international armed conflict between the

States involved. In fact, the new ICRC in art. 2 common af-

stops peremptorily as, although "the intervening State may

claim that the violence is not directed against the government or

the State's infrastructure an international armed conflict arises

between the territorial State and the intervening State when

force is used on the former's territory without its consent".

According to this approach, therefore, the lack of consensus is

the decisive element in the qualification of inter-state relations,

also "in situations in which a State attacks exclusively members

of a non-State armed group or its property on the territory of

another State"280. The solution proposed by the CICR, probably

280 BIANCHI A, “The International Regulation of the Use of Force: The Politics of

Interpre- tive Method”, in Leiden Journal of International Law 2009, p. 651 ss., p. 671

196

capable of representing "the type of theoretical result that

causes military commander's eyes to glaze over as this state of

legal affairs is explained to them", well as being theoretically

feasible, should then be tested with respect to the material

application of the relevant standards. In fact, if one admits an

'armed conflict with a double classification', one should

understand the actual consequences, not limited only to the

correct categorisation of the hostilities281. The consequence

would be that the relevant discipline would end up being

determined by the relevant discipline of international armed

conflicts. In order to fulfil their obligations in this area, the

Member States should also assess the importance of this

legislation. Therefore, although participating States have

consistently indicated their willingness to adhere strictly to their

obligations under this standard of international humanitarian

law through measures seemingly appropriate for this purpose,

such as a thorough visual check of objectives, the use of

context-based functional ammunition, or a timeframe calibrated

to reduce potential harm to civilians, it is not possible to

uniquely qualify the conflict. In this respect, it can be seen that,

since the last reports, the International Commission of Inquiry

on Syria set up by the Human Rights Council has also started to

challenge, in limited cases, some of the attacks conducted by

the coalition. The intervention of the Colalition, therefore, is

inspired by the desire to give a guarantee to international

281 MILANOVIC M, “The Clearly Illegal US Strike in Syria”, in EJIL:Talk!, 7 aprile 2017,

di- sponibile su www.ejiltalk.org, p. 14 e ss.

197

humanitarian law, certainly distancing itself from the other

actors in the area, as also attested by the practice of assessing

any civil loss resulting from the attacks, so as to achieve a

conduct that goes beyond what is strictly required. Several

issues deserve a more open confrontation between the various

actors involved, including the other States operating in this

multinational coalition, which are unlikely to be able to

continue to exploit national caveats and the willingness of other

States to conduct their own attacks legally more doubtful so as

not to take positions on the matter.

4.8 International Justice: Options for Syria

International crimes involve the responsibility of the state and

the criminal responsibility of the individual. Any unlawful act

by a State at international level entails that State's international

liability and likewise, including under customary law, the State

is liable for all acts committed by members of its military and

security forces. As further specified by the Commission, the

responsibility for crimes against humanity and violations of

fundamental human rights, as well as the duty to punish those

responsible, lies with the Syrian Government.

198

With regard to individual criminal liability, according to Art.

25(3) St-ICC, individuals may be tried if they commit an

international crime. They may be tried if they attempt to

commit it or contribute to it, incite or facilitate its commission.

Article 25(4) St-ICC further specifies that 'nothing in this

Article relating to the criminal liability of individuals shall

affect the liability of States in international law'. The term

"individuals" includes all persons without distinction, including

government officials, heads of state, members of parliament or

members of government. There is therefore no immunity. The

limited immunity enjoyed by certain State office-holders can be

invoked only in national courts282. This is specifically the case

with functional immunity (ratione materiae), i.e. the immunity

of organs or officials of the State in the exercise of their

functions operated on behalf of the State, so that the

responsibility for such actions lies with the State and not with

the official himself. As stated in Art. 27(2) St-ICC, these

immunities cannot be invoked in international law and therefore

anyone who commits international crimes can be tried under the

DIP regardless of their position, role or function. There is also a

particular criminal liability, provided for by Art. 28 St-ICC, as

well as by Art. 7(3) St-ICTY and Art. 6(3) St-ICTR, for

military leaders, who are responsible for acts carried out by

forces under their command or control. Commanders and

282 LEDERMAN M, “My Discrete but Important Disagreement with Harold Koh on the

Lawfulness of the Strikes on Syria”, in Just Security, 7 aprile 2017, disponibile su

www.justsecurity.org., p. 58 e ss.

199

superiors are punishable if they know, or should know, that

their subordinates commit international crimes or do nothing to

prevent them from committing or failing to suppress such

conduct. This provision is essential to prevent superiors from

passing the responsibility on to their subordinates by hiding

behind the fact that they ignored such criminal conduct283.

Russia, Iran and Lebanese Hezbollah are involved in the

military operations of a regime, the Syrian regime, which as

seen is operating an extensive and systematic attack against the

civilian population committing crimes against humanity. From

a legal point of view, this opens up the difficult question of the

responsibilities of third country nationals in committing war

crimes and crimes against humanity in a conflict in which they

are engaged. Russia in particular has deliberately targeted

civilians and civil structures using indiscriminate

bombardments even with weapons prohibited by the DIU,

giving rise to accusations of war crimes in Syria. In order to

understand what the possible repression mechanisms applicable

to the Syrian case are today, it is necessary to retrace their

evolution. Syria is of fundamental strategic importance for the

geopolitical interests of Russia, concentrated in the coastal

zone, not to mention that Russia is the first arms supplier to

Syria and the main guarantor of the legitimacy of the Assad

regime. However, the unconditional Russian support, which in

283 MILANOVIC M, “The Clearly Illegal US Strike in Syria”, in EJIL:Talk!, 7 aprile 2017,

di- sponibile su www.ejiltalk.org, p. 14 e ss.

200

fact saved the Syrian regime, has a price: on 20 January 2017

Syria sold the Tartus naval base to Russia, which will be able to

dispose of it entirely for 49 years, with automatic renewal of 25,

permanently anchoring up to 11 warships, including nuclear-

powered, as well as dispose entirely of the air base of

Hmeymim, in Latakia. This is just the latest deal Moscow

snatched from Damascus for its decisive support in the

reconquest of Aleppo in December 2016, which adds to the

already signed hundreds of million contracts awarded to

Russian companies for the reconstruction of Syria in 2016, to

the military agreement signed in August 2016 that allows

Russia to maintain a military presence in Syria indefinitely, and

to the already signed agreements by which Syria has granted

Russia, in 2013, to explore and use the oil and gas fields along

the Syrian coast. Syria is an indispensable resource for Russia

and it is in this framework that the stubborn Russian vetoes are

inserted at every referral of Syria to the ICC. Referral to the

Court would, first and foremost, undermine the legitimacy of

the Syrian regime and make it politically more difficult to

support a regime under investigation for international crimes.

Secondly, in addition to putting political pressure on the

regime's allies, a referral to the Court and a possible

international arrest warrant would also put pressure on the

military level, because action would be needed to bring those

responsible to justice284. Scenario that no power involved, not

284 LEDERMAN M, “My Discrete but Important Disagreement with Harold Koh on the

201

even the United States, hopes for. It is essentially for these

reasons that the Syrian scenario, although so similar to the

Libyan one in its early stages of peaceful protests repressed in

blood and widespread state violence that could amount to

international crimes, has not seen a repetition of the same

international actions, not only with regard to military

intervention, but in this specific case also with regard to the

referral to the ICC. Although the scenario of violence was

similar, Libya did not have the same strategic, military and

economic importance as Syria has for some members of the

Security Council. Although the ICC is an independent judicial

body, referral to the Court of a non-member State is made

through a political body, such as the Security Council, which

operates according to political logic285. This is one of the

greatest limitations of the United Nations and, in fact, in recent

years, efforts have been made to reform the Security Council

and to ensure that, in the face of international crimes, the power

of veto can be rendered null and void. But so far in vain. In

Chapter IV, in 2016, the UN General Assembly approved the

establishment of an investigative mechanism to assist the

above-mentioned Commission of Inquiry in investigating and

gathering evidence of violations of the UNHL committed in

Syria since 2011. In January 2017 this Mechanism was

Lawfulness of the Strikes on Syria”, in Just Security, 7 aprile 2017, disponibile su

www.justsecurity.org., p. 58 e ss.

285 MILANOVIC M, “The Clearly Illegal US Strike in Syria”, in EJIL:Talk!, 7 aprile 2017,

di- sponibile su www.ejiltalk.org, p. 14 e ss.

202

formalized and its mandate provides on the one hand to collect,

preserve and analyze evidence of violations of the IHL and

human rights, and on the other hand to prepare files and files to

facilitate and expedite fair and independent criminal

proceedings, according to the rules of international law, in

national, regional or international courts or in courts that have

or could have jurisdiction over these crimes in the future. What

makes this mechanism relevant is that its mandate goes beyond

that of the Commission of Inquiry in that it allows it to prepare

the necessary files to prosecute those responsible for

international crimes committed in Syria and to lay the

foundations for future trials. In other words, on the basis of Art.

8 of the mandate, the Mechanism has "a semi-judicial function".

This is a significant step forward in the development of

mechanisms for the repression of crimes committed in Syria

and so far is the most concrete step taken by the UN. This

innovative action signals the frustration of the international

community at the deadlock in the Security Council and shows

that a collective response is possible. The Mechanism is still in

the preparatory phase but has already given rise to cautious

optimism among the organisations dealing with the Syrian case,

which have signed a memorandum to the UN Secretary-General

with recommendations and proposals286.

286 KOH H.H., “The War Powers and Humanitarian Interven- tion”, in Houston Law

Review 2016, p. 971 ss

203

4.9 The Final Balance

The Syrian crisis has caused a tragic and devastating impact on

the development in Syria through the destruction of economic,

social and human capital, with unbearable and irrecoverable

losses for the Syrian population. As a result of the ongoing

fighting and fighting, the Syrian economy has suffered a

devastating blow: about seventy-five percent of Aleppo's

production facilities are no longer operational. 287 The total loss

to the Syrian economy due to the crisis by the end of 2012 is

estimated at $ 48.4 billion. 288 Public and private investments

have been negatively affected by the crisis, the unemployment

rate is also rising sharply. By the end of 2012, the

unemployment rate had increased by 24.3 percent. In addition

to the economic impact, the Syrian crisis has mainly affected

the lives of over 9 million people since the crisis began in 2011,

including 6.5 million people who are now displaced.289

287 Matthew J. Harker, Economic Rebuilding Essential to R2P in Syria,

GLOBALRISKINSIGHTS.COM (Sept. 20, 2013),

http://globalriskinsights.com/2013/09/20/economic-rebuilding-essential-to-r2p-in-syria/.

288 Rabie Nasser, Zaki Mehchy & Khalid Abu Ismail, Socioeconomic Roots and Impact of the Syrian Crisis, SYRIAN CTR. FOR POL’Y RES. 10 (Jan. 2013), http://scpr-

syria.org/download/1363/?v=1365.

289 Syria: Pledges Prove that the People Devastated by Conflict in Syria are Not Forgotten,

Says UN Chief Ban Ki-moon, UNITED NATIONS OFF. FOR COORDINATION HUMANITARIAN Affairs (Jan. 15, 2014), http://www.unocha.org/top-stories/all-

stories/syria-pledges-prove-people-devastated-conflict-syria-are-not- forgotten-says.

204

According to UN reports, " [a] as many as 2.5 million people

are blocked in areas that are difficult to reach, even in besieged

cities, where access to aid has been limited or non-existent.

About 2 million people have fled the country and are currently

living with host families and refugees in Lebanon, Jordan, Iraq,

Turkey and Egypt”.. UN humanitarian leader Valerie Amos,

who visited displaced families in Syria in January 2014, said

Syria is the “largest humanitarian crisis in the world”.

Although the Syrian crisis has been underway for years, the

United Nations Peacebuilding Commission has not spoken or

found post-war reconstruction strategies in Syria.

The Syrian crisis, recognized today as one of the worst

humanitarian tragedies of the 21st century, was also accepted as

the most recent and controversial controversy over the R2.246.

The situation in Syria has not changed even after implementing

the destruction of chemical weapons in the country. All

discussions on granting aid to the affected areas ended without

success. Geneva speaks of a political resolution to the conflict

and the improvement of humanitarian conditions resumed on 22

January 2014, but ended without any agreement.247 This

failure is due to Syrian opposition groups and to the pressure of

the international community to oust Assad from power . The

Syrian government continued to crack down on opposition

groups and civilian populations living in rebel detention

areas.249 However, clashes intensified among rebel groups and

205

further worsened the situation. In addition to the growing

violence in the country, Syria was unable to meet the deadlines

of the chemical weapons destruction plan.250 After the

deadline of 5 February 2014 for the delivery of all chemical

weapons stocks, Syria accepted a new one deadline of 10 April

251

While violence and the deterioration of human rights continued

in Syria, the United Nations has also taken a series of measures

to support the endangered civilian population. On February 22,

2014, the Security Council unanimously adopted resolution

2139 and asked the Syrian authorities and rebel factions to

allow unimpeded support to UN humanitarian agencies 290. It is

important to stress that Syria announced his willingness to

cooperate with the Security Council resolution if the

sovereignty of the Syrian state was respected. Following this

resolution, UN trucks have been authorized to enter Syria on 19

March 2014.

Despite how the concept of R2P has been used and used in

Libya and Ivory Coast, the Syrian crisis has so far shown that

R2P is still burdened with many unsolved problems. Indeed,

290 Unanimously Approved, Security Council Resolution Demands Aid Access in Syria,

U.N. NEWS CTR. (Feb. 22, 2014),

http://www.un.org/apps/news/story.asp?NewsID=47204#.U9EEcMtOVdg.

206

the R2P principle seems to have had little importance for the

development that this crisis has had. Years have passed since

the Syrian crisis began and the reactions to this crisis have been

mixed and diversified.

The analysis of state practice during the Syrian crisis revealed

disagreements about whether Syria had fulfilled its

responsibility to protect its civilian population. The continuing

mass atrocities against civilians in Syria justify the application

of the R2P principle.

The current humanitarian crisis in Syria poses important

challenges and objectives for the R2P principle. As the Syrian

crisis shows, cases of mass atrocities and violations of human

rights still persist, similar to the atrocities that have occurred in

history, both in Bosnia and in Rwanda. One of the main reasons

for the continuation of mass atrocities in Syria is the inaction of

the Security Council. Apart from the uncertainties of the R2P

principle regarding its scope, the lack of a true consensus

among some Member States has further hampered the decisive

actions in the field of R2P to stop the ongoing atrocities in

Syria. The international community, therefore, has dealt with

very familiar controversies about sovereignty and non-

intervention and the need to protect civilian populations against

human rights violations. In short, it was not possible to reach a

consensus among Member States on what response should be

implemented to protect civilians in Syria. Similar uncertainties

207

also confronted the context of pre-R2P humanitarian

intervention. Therefore, state practice during the Syrian crisis

has revealed that in the wake of the showdown, R2P has not in

any way changed existing international law 291.

Conclusion

“R2P has diminished from a high hope into an interesting

collection of words lying on the table,” Ashdown said.

The data confirmed his theory: Syria fell into a bloody civil war

in 2011. Eight years later, the war has still left important

wounds. At the beginning of 2018, the death toll was 400,000

and over 11 million of Syrians had been displaced, losing their

homes, livelihoods and family members. The extent of the

devastation goes beyond the imagination, yet the international

community has resisted action and continues to send

contradictory signals.

The Syrian conflict is unfortunately a bitter example in which a

sovereign state and the international community in general have

manifestly failed in their purpose, in the responsibility to

protect civilians from crimes of mass atrocities.

291 Muditha Halliyadde, Syria - Another Drawback for R2P?: An Analysis of R2P's Failure

to Change International Law on Humanitarian Intervention, 4 Ind. J. L. & Soc. Equality

215 (2016).

208

CONCLUSION

The analysis carried out in this thesis has shown that although

the international community considers defending the rights of

civilians involved in armed conflicts a key priority. However,

this conviction is not matched by extensive international

engagement in practice ,. The Syrian conflict is a case in point

even though it must be considered as an historically special case

due to the number of actors, aims, victims and oppositions

involved. Indeed, it has been recognized that in the Syrian camp

the world powers have been and are currently being confronted,

pursuing objectives independently, with the exception of those

of a tormented and destroyed population to the point of

exhaustion. In particular, this thesis has found that the attacks of

the various actors involved are difficult to consider

humanitarian. An important issue that emerges from the

analysis of the Syrian conflict is that of the application of

extraterritorial human rights, with particular reference to

jurisdiction. The application of humanitarian law is very

complex in case of conflict. It could be said that belonging to

the control, whose purpose is an immediate and direct link

between authority and the individual, represents the cardinal

element around which the jurisdiction of the state will be

209

founded. This jurisdiction is therefore linked to that of the

competent international court. In situations of internal or

international crisis, the existence or otherwise of an armed

conflict, capable of affirming the predominance of the law,

international humanitarian aid in taking up space for human

rights, therefore remain the first condition to be established by a

preliminary ruling. The question of a state of emergency, a

phenomenon in relation to which the relationship between

rights and human rights and humanitarian law raises particular

questions and substantial and procedural problems. In fact, the

main issue to be highlighted is, in the Syrian case, the one to be

taken following the activation of a human rights exemption

mechanism. This mechanism is extremely doubtful if

international law can be considered applicable. This question

was not only of a theoretical nature, as humanitarian law offers

additional protection to the Charter regime, as well as being

mandatory. Indeed, Article 3 common to the Geneva

Conventions provides, in all circumstances, for the protection of

persons, without unfavourable distinctions, who do not

participate directly in the Commission. Considered that this is

not a problem for Europe and that it is a problem for the

Member States. In other circumstances, the rules of

humanitarian law, applied in place of human rights, would

lower the level of protection established by the latter.

The first part of this thesis focused on the analysis and

treatment of theoretical concepts such as the use of force in its

210

forbidden and authorized meanings, the cardinal principles that

underlie the doctrine of Responsibility to Protect and more

generally of humanitarian law. The second part analysed these

principles in the light of practical cases like the genocide in

Rwanda, the intervention in Libya and in particular the case of

Syria.

The milestone around which this thesis revolvesis represented

by the evaluation of the reasons why the concrete application of

these principles was considered not successful by the mass

atrocities perpetrated in Syria since 2011. What emerged at the

end of the dissertation is that the Syrian case represents a failure

in the application of the concept of the Responsibility to

Protect: the failure of the international community takes place

in the absence of effective actions for the protection of the

Syrian population, which allowed the parties to the conflict, in

particular the Syrian government to to carry out war crimes and

crimes against humanity in total impunity, with a dramatic and

catastrophic final balance. This underlines how in the complex

system of international relations, each actor is guided mainly by

personal interests, thus showing how each actor is more

committed to pursuing his own benefits, rather than worrying

about issues such as cooperation or effective and prompt

intervention in situations unstable, difficult and precarious.

Therefore, faced with such a precarious and unstable

international equilibrium, dominated by the change and the

overthrow of the established equilibriums, the Syrian dynamic

211

remained on the sidelines, closed by the divisions of the

member states of the United Nations and the tensions that

inevitably influenced relations with these States, with a future

perspective with still remain undefined and above all with

uncertain traits.

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212

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